DRI: A Full Policy Agenda, Including Support For Civil Justice Reform

Saturday, November 1, 2008 - 01:00

Editor: Please update us on the steps that have been taken by DRI to improve judicial compensation and to implement other objectives of the DRI's Judicial Independence Project.

Martin: DRI is a national organization of defense counsel with over 22,700 members. As you know, DRI has long supported increased judicial pay at both the state and federal levels. It is a very high priority for us. We have also published a white paper that's posted on the DRI website called Without Fear of Favor (see the link appended to the version of this interview posted at www.metrocorpcounsel.com) . It's the product of the DRI Judicial Task Force led by John Trimble of Indiana. In it we make a strong case for the need for judicial independence and increased pay for judges at all levels.

At the federal level, DRI has supported legislation that is still pending in Congress that would give our federal judges a much-needed pay raise - the first such raise they have had in many years. At the state level, our efforts to increase judicial compensation have been hampered by reduced state budgets attributable to lower tax revenues. In these challenging economic times, it's a particularly tough sell, but we've had some success.

Editor: Tell us about DRI's Jury Task Force Paper.

Martin: Our Jury Task Force was created because there has been a tremendous problem around the country, particularly in some of the large metropolitan areas, with people just not showing up for jury duty, and when they do show up using all kinds of excuses to get off. Unfortunately this has become a major problem. The response rate for jury duty in some parts of the country is extremely low, and a lot of the people who complain about the jury system are the ones who go to great lengths to avoid jury service.

Therefore, DRI plans to launch a grass-roots educational effort by state and local defense organizations to educate the public through speeches to civic groups and other local groups about the importance of jury service. We have published a Jury Task Force Paper (see the link appended to the version of this interview posted at www.metrocorpcounsel.com) to guide the local organizations that participate in this program.

Editor: What about DRI's Future of Litigation project?

Martin: There have been a lot of changes in the litigation landscape over the last five to ten years. Today, there are more alternative dispute resolution proceedings and fewer and fewer jury trials. We thought it would benefit our members and the public in general if DRI were to publish a thought-provoking paper about the future of civil litigation in the United States.

As we speak, a consulting firm retained by us is conducting interviews with a wide variety of leading lawyers - plaintiffs' lawyers, defense lawyers, general counsel, heads of litigation with major corporations, judges at the state and federal level, law professors, and others who have keen insight into where the litigation system in this country is going over the next five years. We're excited about this project, and we hope to have a paper published by early next year.

Editor: Is DRI interfacing with lawyers internationally?

Martin: We've had international members for many years, but in the summer of 2007 during Pat Long's term as President of DRI, we launched DRI Europe, which is a section of DRI. It has European leadership with members from many European countries, including corporate counsel. Its goal is to bring the benefits of DRI membership to European lawyers.

DRI Europe keeps its members abreast of litigation developments in the UK and the other EU countries and provides them with opportunities to meet and network with European and American lawyers. On the plus side, there's much more commerce back and forth between the U.S. and Europe. On the minus side, some of the unfortunate aspects of the U.S. legal system are being adopted in Europe. Some European countries now have cases that are similar to our class actions, and a number of U.S. plaintiffs' law firms have set up shop in the UK and in Europe.

We had our first stand-alone seminar on product recalls this past April in Madrid, Spain, which was successful and well-attended. We are looking forward to another successful program that will be held next May in Munich, Germany.

Editor: Are corporate counsel encouraged to join DRI?

Martin: Very definitely. We have a new Corporate Counsel Committee of DRI, which sponsors corporate-counsel-only events. We held one at the Annual Meeting in October.

Editor: Tell us about LCJ and DRI's role in that organization.

Martin: LCJ is a national coalition of corporate counsel and defense bar leaders supporting excellence and fairness in the civil justice system. The defense organizations that support the work of LCJ are DRI, the International Association of Defense Counsel (IADC) and the Federation of Defense & Corporate Counsel (FDCC). The presidency of LCJ rotates among these three organizations.

DRI is affiliated with approximately 60 independent state and local defense organizations around the country and is able to enlist an even larger number of defense lawyers in support of LCJ's civil justice reform initiatives. DRI does not control the state and local organizations, but it does have a lot of interaction with them. The membership of the three national organizations that I mentioned and the state and local organization (collectively Defense Organizations) totals about 60,000.

Also deeply involved in supporting LCJ initiatives are representatives of its corporate members, which include some of the largest corporations in the world, and the members of the many law firms that make up its Associate Members. It maintains close liaison with the Civil Justice Reform Group, Association of Corporate Counsel, U.S. Chamber Institute for Legal Reform and other reform-minded organizations.

Editor: Perhaps you could provide us with a few examples of how the Defense Organizations worked with LCJ on initiatives where their collective trial experience proved to be of great importance. First, tell us about the passage of Federal Rule of Evidence (FRE) 502.

Martin: After the amendments to the discovery rules were passed, the next step was the successful effort to get FRE 502 passed by Congress and signed by the President. The result will be to reduce the cost of litigation. One of the most costly exercises in litigation is conducting exhaustive privilege reviews of paper documents to be sure that privileged documents are not inadvertently given to the other side. The situation is made even more difficult because when documents are stored electronically, with sometimes millions of documents being involved, the potential for inadvertent disclosure is greatly enhanced.

If privileged information is inadvertently produced, some courts have held that there's a waiver of the privilege not only for that document but also with respect to other documents dealing with the same subject matter, so the penalty for inadvertently producing privileged information can be pretty draconian.

If the producing party discovers that it produced privileged information, Rule 502 now provides that there is no waiver of the privilege if the producing party can show that the disclosure was inadvertent, that it took reasonable steps to prevent a disclosure and that it promptly took reasonable steps to rectify the error. This should result in tremendous cost savings and prevent unfairness, because it will not be as time-consuming to conduct these privileged reviews for fear of inadvertently producing privileged information.

Unlike most procedural rules, rules that involve a privilege have to be affirmatively enacted by Congress and signed by the President. A lot of effort went into encouraging Congress to pass Rule 502.

Editor: Next, tell us about LCJ's efforts to amend Rule 26, which also illustrates the essential role that the trial experience of the Defense Organizations plays.

Martin: Rule 26 deals with discovery relating to expert witness opinions in litigation. There have been some problems with the current Rule 26 that the proposed amendments are attempting to rectify. They address two basic issues.

The first relates to confusion in the case law about when an expert report has to be provided with regard to certain kinds of experts. A party who introduces expert opinion testimony from a nonparty (like a treating physician or an investigating officer) should not be required to produce an expert report. Often it's difficult or impossible for the party who is designating a witness like that to get the person to write a report that complies with the rules, because you can't compel them to do it. Also, employees may testify who are not accustomed to writing reports.

The proposed amendments clarify the rule by providing that usually only specially retained experts have to write reports. If a party designates as an expert a party's employee who does not regularly give expert testimony or a nonparty expert, like a treating physician or an investigating officer, then the party designating the witness has to make a full disclosure of what opinions they expect to obtain from those experts at the trial, but the party doesn't have to furnish the other side a report.

The second issue involves the discovery of communications between lawyers and retained expert witnesses. In most federal jurisdictions today, courts allow wide open discovery of all written communications between lawyers and expert witnesses, and that can become very time-consuming and expensive. To avoid this, many good lawyers will arrange to have their communications with experts verbally in person or by telephone instead of by e-mail or other written correspondence that can be discovered. Also, when an expert prepares a report the drafts usually are discoverable, and that leads to a lot of gamesmanship, such as lawyers watching over an expert's shoulder while an expert writes a report.

To correct the communications problem, the revisions of Rule 26 provide that drafts of expert reports are not routinely discoverable. There are some exceptions to this in the proposed Rules. Any communications regarding the expert's fees will be discoverable, as will any communications regarding the facts or data considered by the expert in forming the expert's opinion or any assumptions the lawyer has asked the expert to make in forming his or her opinions. We think these revisions will lead to a cost savings in the discovery process.

Editor: LCJ's position on the proposed amendments to Rule 56 is another issue that illustrates how the trial experience of the Defense Organizations helps.

Martin: Regarding the proposed amendments to Rule 56 of the Federal Rules of Civil Procedure (FRCP) with respect to summary judgments, LCJ supports the current draft of the Rule with one caveat: we believe the Rule should mandate that a meritorious summary judgment be granted, and that the Rule should use the word shall or must instead of saying, as currently drafted, that the court should grant the motion for summary judgment. We think that federal courts should be required to grant meritorious motions for summary judgment.

Editor: From time to time, DRI receives requests for comments on proposed changes in the Federal Rules of Civil Procedure, state and federal legislation and other important national issues. It was asked by the Administrative Office of the United States Courts for comments on the Federal Courts Jurisdiction and Venue Clarification Act of 2008 (the Act). Why did its comments favor enactment of the Act?

Martin: When it comes to original and removal federal jurisdiction, there are a number of areas where the case law is not completely clear and where federal circuits differ about exactly how the courts should determine whether federal jurisdiction exists. I can give two fairly common examples.

One is the situation where the plaintiff files a serious case but does not allege the amount in controversy, either because it's not required by the local state court rule or because in some cases state court rules prohibit claiming a specific amount in controversy. Some federal courts have held that even if it's obvious that the case involves a death, multiple fatalities, serious injury, or something of that nature, the case cannot be removed because the amount in controversy hasn't been established. The Act would give lawyers and courts much more guidance about how to deal with that problem when removing a case to the federal court.

Another problem is that typically there is a one-year limit on removing cases to federal court, and there's been a lot of gamesmanship that goes along with that such as suing a defendant that is not really the target defendant and then waiting to join the real target defendant until after a year passes so that defendant can't remove it to federal court. There has also been some gamesmanship with regard to the sequence in which the various defendants are served with a summons or citations. The Fifth Circuit has created an equitable exception to the one-year limit, but some other Circuits have not followed its lead. The Act revises the statute to deal with that issue as well. In some areas the proposed amendments will expand federal jurisdiction somewhat and in other instances they will contract federal jurisdiction, but on balance we believe these changes are good and will eliminate a lot of unnecessary satellite litigation and result in cost savings for our clients.

Editor: Our October issue contained a Special Section dealing with issues relating to proposed amendments to FAS 5 by the Financial Executives Accounting Board (FASB). LCJ submitted a Comment, prepared by your firm, which also included as signatories DRI, IADC, FDCC and the Association of Defense Trial Counsel.

Martin: This is an issue of major importance to defendants. It emphasizes the need for constant vigilance since most lawyers are not tuned into the activities of the FASB. Yet, as the Comment pointed out, the changes proposed by the FASB would dramatically shift the existing litigation balance in favor of plaintiffs' counsel.