ABA Joint CLE Seminar Liveblogging (Day 1)

The ABA’s Section of Litigation Joint CLE for the Environmental, Mass Torts and Products Liability Committees is officially underway! It is touted as one of the most successful joint committee endeavors in the ABA. Given that so many issues are common among these areas of the law, and with the growing limitations on travel and resources, it makes even more sense that these committees work together.

It was an early start to the day in Beaver Creek, with breakfast starting at 6:00 a.m. and the obligatory ethics CLE session at 6:30 a.m., before the sun has risen above the surrounding peaks. It was particularly early given that the seminar kicked off with a welcoming reception last evening, followed by dinner in Beaver Creek Village. But, the early start time is undoubtedly designed so that the sessions can end midday, allowing attendees plenty of opportunity to take in the slopes and go to the spa.

There were no topics on the agenda for today that were substantively related to products liability. Those sessions, particularly including the products liability update from 2009, are set for tomorrow. However, many of the sessions today provided general tips, techniques and information that can, of course, be applied to a products liability practice.

The ethics session was fairly interesting, with a focus on the ethical limitations of making statements about clients or litigation outside of the courtroom, particularly in high profile cases in which you may find yourself standing front and center with a microphone in your face. The panel, composed of attorneys from both sides of the courtroom, along with a member of the judiciary, the Honorable Kristen L. Mix of the District of Colorado, discussed how they would handle various scenarios. As always, it was good to hear a judge’s insight on how to conduct yourself in representing your client, both inside and outside of the courtroom. The best tidbit of advice from Judge Mix? “Mea culpa goes a long way.” If something goes awry, fess up about the matter before the court and offer ways to fix it. The judge will at least respect that you comprehended the rules and recognized your misstep.

The seminar next moved on to a reflection from in-house counsel on the economy and its effects on their litigation and practice. The panel was comprised of current in-house counsel for Coca-Cola Company, Livingston Johnson; Alcon Laboratories, Inc., Jerry Bradford; and Electrolux, Sharon A. Luarde. The fourth panel member, Laurie A. Polinsky, who now finds herself a casualty of the declining economy, was former assistant general counsel for Sanofi–Aventis and then for Amgen. The panel did a great job of moving beyond the topic that reverberates through most panel discussions involving in-house counsel (that being, the likes and dislikes of their relationships and interactions with outside counsel). Rather, they discussed the present strains and pressures under which they now find themselves and how that is necessarily trickling down to outside counsel, from budget issues to increased demands on time.

The last plenary session of the morning addressed legal tactics to use with suspected baseless or fraudulent claims. As promised, the Honorable Judge Janis Graham Jack was on the panel and described how she came to uncover mass fraud in the silica litigation. With her background as a nurse before going to law school and making her way to the bench, she was well-suited to understand the medical issues that led her to determine that a handful of doctors had been manufacturing diagnoses of silicosis for money. Other well-known mass fraud cases, particularly relating to Fen–Phen weight loss pills and to cases filed against Dole arising from the use of pesticides on banana farms in Latin America (banana farmers claimed that the pesticides rendered them sterile), were also addressed. The short of it, as advice for attorneys to take away, is to know the medicine. You have to know the medicine in order to ferret out if there is any fraud in how the person came to be diagnosed with some medical condition caused by a product. And, if there is fraud, because you may not have the benefit of having Judge Jack with her medical knowledge and background, you have to be ready to educate the court.

Overall, this morning’s sessions offered some good refreshers and practice pointers to keep us on our toes in the face of fast-paced litigation.

What’s next? Time to get down to business with committee business meetings and plans for 2010! Then it will be off to some mingling and a dinner event for seminar attendees.