ABA Joint CLE Seminar Liveblogging (Day 2)

Although this morning’s program began a little later (although still early at 7:30 a.m. local time) the room was still bare with only two minutes to go before the official start-time. People slowly trickled in as the program began. The first topic of the day was effective and inexpensive technology and presentation techniques, moderated by John T. Lay, Jr., of Ellis, Lawhorne & Sims in Columbia, South Carolina. Panel members were Robert L. Featherly of Litigation Insights, a company offering jury research and trial presentation services; defense litigator Cathy Havener Greer of Wells, Anderson & Race, L.L.C. in Denver, Colorado; and the Honorable Michael J. Watanabe, a federal magistrate for the U.S. District Court for the District of Colorado.

The lesson of the day: Just because you can conduct a high tech trial in a fully wired courtroom does not mean that you should necessarily do so. For half an hour, the panelists discussed the history of courtroom technology and the tools of the trade, beginning with blackboards all the way to creative computerized visual animations and the latest technological gadgets.

Above: The view from the conference center.

As a no-nonsense judge who takes control of his courtroom, Magistrate Judge Watanabe told the attendees that he expects three things from lawyers in his courtroom: professionalism, preparedness, and punctuality. It is essential for practitioners to know both their jurisdiction and their audience, but also to be ready for anything unexpected (whether that be the judge’s refusal to permit certain evidence or the crashing of one’s computer). He reminded those assembled that it is the judge – not the lawyer – that decides the order and the manner of the presentation of evidence during a judicial proceeding.

Another lesson: The biggest mistake that lawyers can make is to allow technology to interfere with their connection to the jury. Technology, if relied upon too heavily, can create too much distance between the advocate and the finder of fact. As aptly pointed out by Mr. Lay, a lawyer’s charisma and voice are key to any attempt to make a connection with a jury. For that reason, he advocates using technology to enhance a presentation or to highlight a key theme or exhibit, but not to overpower it. Mixing high-tech exhibits with good communication not only fosters the credibility with the jury, but also maintains the jury’s interest, which would certainly wane otherwise. Overall, the session offered some good pointers applicable to any practice area.

Above: The conference center itself.

The seminar then became an interesting plenary session on the role of the human genome and genetic testing in toxic tort and mass tort litigation. The use of DNA testing to determine whether an individual could be or has been injured by an alleged exposure to toxic substances is a cutting edge, but it could one day become central in mass tort and products liability cases. Law professor Gary E. Marchant of Arizona State University commented that, within just a few short years, we will all be “genotyped” and will know our particular traits and susceptibilities. That information can obviously be used in multiple various ways by both plaintiffs and defendants.

Dr. Marchant explained that genes express themselves in different ways when exposed to different chemicals. For instance, in instances of Benzene exposure alleged to have caused leukemia, in approximately 80 percent of such cases, chromosomes 5 and 7 will break. That fact can help to determine whether Benzene exposure actually played a role in the alleged injury.

Above: Just outside the conference center.

What will this mean for litigation? These issues will, of course, continue to develop along with the science. Key issues for the future will be whether manufacturers will have to warn against particular susceptibilities affecting small percentages of the population. So far, the Fourth Circuit has at least determined that there is no duty to protect unusually susceptible people. This may be the way that the law develops at least in the context of strict liability. Turning to negligence, however, as duties extend to even eggshell plaintiffs (you take them as you find them), manufacturers could find themselves on the hook. Another key question is whether courts will one day require that a plaintiff produce evidence of “biomarkers,” or some change in the genes to establish exposure to a particular product or substance. Time will tell.

Last, but certainly not least, the seminar divided into several smaller break-out sessions. Essentially a review of developments in 2009, the products liability session generated much discussion about the new Medicare legislation, which will require that insurers report payments to Medicare-eligible claimants to the Centers for Medicare Services.

Overall, the 2010 ABA Section of Litigation’s Joint CLE Seminar was fruitful and productive. Now it is time to join everyone on the slopes!

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.

Live Blogging the ABA Joint CLE Seminar in Colorado

This morning, I am making the trek out to the Park Hyatt Beaver Creek Resort and Spa, the location for this year’s American Bar Association Section of Litigation “Environmental, Mass Torts and Products Liability Litigation Committees Joint CLE Seminar” in Avon, Colorado. (You can see the brochure for this conference here [PDF]). I’ll be live blogging the event and plan a series of short posts over the course of the conference. Nestled among mountain peaks that rise up to 14,000 feet, the resort is in the heart of Beaver Creek Village in the beautiful Vail Valley. It is hard not to be excited about such a beautiful destination, with some free time built into the schedule to take in a few downhill runs or, perhaps, a spin on the ice rink.

There are many reasons to look forward to this CLE seminar. Not only will there be an opportunity to catch up on the latest legal news and litigation techniques, there will also be break-out organizational meetings for the Section’s substantive subcommittees. At this conference, plans for the coming year are solidified and assignments are made to various subcommittees. If a lawyer wants to be involved in the environmental, mass torts or products liability committees, this is the place where he or she would begin that path.

As for the CLE program, there are, of course, multiple featured speakers of interest, from trial counsel and experts to members of the judiciary, including the Honorable Janis Graham Jack of the U.S. District Court for the Southern District of Texas. Those attorneys involved in silica litigation or who have represented manufacturers of asbestos-containing products are undoubtedly well familiar with Judge Jack. In 2005, she garnered much attention after issuing a 249-page order in In Re Silica Products Liability Litigation, in which she exposed fraud in the manufacturing of silicosis claims through for-profit mass screenings. 398 F.Supp.2d 563 (S.D. Tex. 2005). A former nurse, Judge Jack found that “[i]n the majority of cases, these diagnoses [were] more the creation of lawyers than of doctors.” Id. at 635. They “were driven by neither by health nor justice: they were manufactured for money.” Id. With such a background, she is well-suited for a panel addressing suspected baseless or fraudulent claims in litigation.

Further, it is no surprise to see a session devoted to the economy and its effects on the practice of law – a topic that has become all too relevant and seems to appear on virtually every program for these types of meetings, along with the impact of the Obama administration, which seems to be a theme that will be intertwined into several of the presentations and panel discussions.

Although provided with some advance materials, attendees must wait to receive materials for the products liability breakout CLE, which will provide a year in review. We are promised some insight on landmark Supreme Court decisions, the new administration, and a focus on health care reform. Panelists Penelope Dixon, Brian Fowler, and Lori Leskin, have reportedly scrutinized the legal trends over the past year and will reveal “what is really going on – including the good, the bad and the ugly of 2009.”

Stay tuned for updates and photos coming Friday and Saturday!