FDCC’s Defining Motto: Defense Lawyers. Defense Leaders.

Thursday, April 19, 2012 - 07:45

The Editor interviews Edward M. Kaplan, Member, Sulloway & Hollis, PLLC and President-Elect, FDCC.

Editor: Describe your practice and your history with the Federation of Defense & Corporate Counsel (FDCC).

Kaplan: My practice is focused primarily on labor and employment law, representing major medical centers, corporations, utilities, educational institutions and state retirement funds throughout the Northeast. I provide outside counsel for labor and employment matters, routinely work on compliance and regulatory issues and represent clients before administrative agencies and in state and federal courts throughout New England.

I’ve been an FDCC member since 1991 and gradually became more involved, first as chair of the labor and employment section then in other substantive areas. I was elected to the board in 2005 and then as an officer in 2011. The usual officer rotation for the FDCC involves being secretary treasurer, then president-elect and, in the fourth year, chairman of the board, and I am following that pattern with my own involvement.

Editor: Please talk about the FDCC’s mission and membership.

Kaplan: FDCC’s mission is focused on three fundamental principles: knowledge, justice and fellowship, and we take those issues very seriously. We fulfill our educational mission by providing our members – and often larger audiences – with dynamic continuing legal education programs. We have approximately 28 substantive law committees that drive this process and ensure that their membership is current and their programs are up to date and relevant.

We offer broad-based programming during our biannual meetings. For example, the annual Trial Masters Program – considered among the best trial lawyers in the country – involves five or six members who teach different aspects of trial practice. While this group draws from a membership that is heavily weighted toward defense and corporate counsel, the issues covered are relevant for all. Sample topics include strategic jury selection to ensure a fair and balanced opportunity for the defense, limiting and addressing damages, developing issues and themes and then presenting evidence to help jurors draw the right conclusions.

FDCC holds two meetings a year, at which our substantive law sections meet to discuss specific topics. We also hold plenary sessions to cover general topics, such as complex insurance coverage issues relating to floods and hurricanes, and corporate counsel risk exposures and responsibilities in connection with the development of new federal reporting criteria.  We engage speakers to talk about negotiation, arbitration and mediation strategies that are appropriate and necessary for all of our corporate and outside counsel members, not just those in the insurance industry.

Our total membership is limited to a highly qualified group of 1,000 defense lawyers plus another group of approximately 300 members, including corporate and international counsel and members from the professional insurance claims area. Typically we host around 700 participants at our winter meeting and up to 1,000 at our summer meeting, and members have been bringing their families to these meetings for years, forging great friendships throughout the world.

Being a relatively small group allows our members to develop productive friendships, and this aspect of FDCC membership provides a remarkable benefit for our members’ clients. I know, for example, that I can pick up the phone and call an exceptional lawyer qualified in virtually any U.S. and some foreign jurisdictions, tapping into their expertise for my clients.

Thus, we address the knowledge and fellowship components of our mission. We’ll address the justice component later in this discussion, but, in general, these efforts work toward the goal of establishing and preserving a level playing field in the courtroom.  We observe legislation that may tip this balance unduly toward plaintiffs, and we’ll address issues as they arise, including speaking out and testifying as necessary.

Editor: Tell us more about FDCC’s membership, including foreign and corporate counsel members plus insurance industry professionals.

Kaplan: We have many foreign members from countries like Australia, Belgium, Canada, Bermuda, France, Germany, Hong Kong, Ireland, England, Israel and Spain. We offer an international program in which Canadian and Spanish members are particularly active but which also provides wonderful insights to our U.S. members. We hold a meeting once every six or seven years at an international location, such as a recent meeting in Munich and numerous in England.

Our corporate counsel contingent is very strong, including general counsel and supporting in-house counsel, and our current secretary treasurer and FDCC’s next president-elect is the general counsel for Boston Scientific. Timothy A. Pratt has been very active in the organization and is our first corporate counsel substantially involved in chairing various committees. This is a wonderful development for our organization, clearly reflecting that we are very open to and involved with corporate counsel members.

When FDCC started 76 years ago, the defense bar and the insurance industry had a very close working relationship; thus, historically, our organization has enjoyed a natural fit with individuals in the claims profession. Our membership includes representatives from virtually every U.S. insurance company, and they participate on every level in our organization.

Editor: What is the selection process for membership?

Kaplan: Our selection process is controlled by a very independent admissions committee charged with investigating and then recommending qualified individuals who are nominated for membership. FDCC seeks lawyers, particularly defense counsel with demonstrated skills, who are respected by their peers, the plaintiffs bar and the trial or administrative judges before whom they practice.

In order to make that determination, our admissions committee of about 30 members will assign an applicant to a particular committee member, who will send out as many as 100 letters to colleagues with whom the applicant has tried cases. We compile a list of cases and significant matters in which the applicant was involved during the prior four or five years so that we can seek feedback from their adversaries, judges and other lawyers in their communities.

We identify prospective lawyers by approaching FDCC members and those from sister defense organizations. There is an extensive vetting process that also ties in with our fellowship mission inasmuch as we ask compatibility questions like, would you have this person to your house for dinner? These considerations are critical to fostering the strong working and social relationships that our members enjoy for many years.

Editor: The FDCC is hosting a Corporate Counsel Symposium on September 12-14 in Philadelphia entitled, “What Corporate America Can Expect from the Winner of This Year’s Presidential Election.” Can you give our readers a preview of the agenda for this event? Are corporate counsel who are not members invited to attend?

Kaplan: The Corporate Counsel Symposium is built on the same model we use for our Insurance Industry Symposium, which is to say that while any FDCC member can participate, they must invite a corporate counsel to attend with them. As a result, many non-member corporate counsel who may be clients or friends of our members are able to attend. This requirement also helps to foster those partnerships, and both symposiums have been wonderfully successful.

This year’s symposium will feature discussion of relevant topics, including some purely business-related issues, such as law department management within the corporate structure and how to prepare for and manage through crises. There will be a very important discussion about criminal statute enhancements that are threatening corporations. There are a number of recent cases, for instance, in which corporate counsel at various levels were charged with violating reporting requirements and subjected to criminal penalties.

Editor: Please talk about the FDCC’s roster of legal resources, including those aimed at advocating for amendments to the Federal Rules of Civil Procedure and efforts to obtain changes in state court rules or legislation applicable to e-discovery. What is your level of involvement with LCJ?

Kaplan: While we do not lobby in the traditional sense, FDCC designates a representative in every state for the purpose of enabling us to react immediately to issues, particularly legislative developments. If a state legislature passes, or is considering, a statute that is detrimental to the interests of the clients we represent or to the defense bar in general, we want to immediately alert those individuals and mount an appropriate resistance campaign. Such action may involve testimony at the state level or letter writing campaigns, and we recently have joined with other defense organizations in an aggressive effort to seek revision of the discovery provisions under the federal rules.

Obviously, this effort harmonizes with LCJ initiatives, and the FDCC is very involved with and supportive of LCJ’s work at the federal and state levels. Every third year, LCJ’s president is a member of the FDCC, and Wayne Mason – a former FDCC president – is the current president-elect of LCJ. We recently participated in the effort to change electronic discovery processes that are currently being considered by the civil rules committee, and we’ve been very active in supporting the materiality standard in connection with the preservation of electronic data.

Corporations are concerned about the cost of retaining information, and the defense point of view maintains that data preservation should be based on its materiality to a given compliant or claim – not on the mere fact of its existence.

In a recent submission to the civil rules committee, I was amazed at a particular comment stating that an everyday owner of a single iPhone plus a laptop computer who becomes involved in litigation likely possesses 25,000 bankers’ boxes of information. That statistic is a perfect and graphic depiction of what we are working to prevent, and the FDCC participates in those efforts at every level.

I serve on LCJ’s board, as do our president and chairman, and, as mentioned, the next president of LCJ will be one of FDCC’s prior presidents, so we’re very active in those issues.

Editor: Do you file amicus briefs?

Kaplan: We file amicus briefs in issues of relevance to our goal of maintaining an even playing field for parties on both sides of the courtroom, such as was reflected in a recent amicus filed at the request of a Massachusetts member. Essentially, the case involved wrongful death and tort claims premised on alleged building code violations. The case was tried before a jury, which found no fault with regard to building code violations; however, the superior court judge awarded $6 million in treble damages for violation of the Massachusetts Consumer Protection Act. Our amicus was filed in connection with the subsequent – and as yet undecided – appeal, not only in support of a claim we defend but also as part of broader efforts to define the reach of consumer protection acts.

We also filed an amicus brief recently in Washington State, challenging a lower court decision that affected an insurer’s right to have a jury decide the essential elements of a bad faith claim. We argued that an insurer is entitled to such due process rights and that these rights were violated by the lower court decision.

These are good examples of issues our accomplished amicus committee will pursue – consistent with our goal of ensuring a level playing field for all, and I estimate we file three or four per year. We avoid amicus roles that are inconsistent with membership goals, which are multidimensional and therefore require that we be selective.

Editor: Please discuss other FDCC activities, such as your Leadership Institute.

Kaplan: One exciting part of the FDCC organization is our Federation Foundation, which is a separate entity that raises money to provide seed funds for programs – including the Leadership Institute. This is an excellent program we offer every year or two that explores the core qualities of leadership and how individuals can master them in order to become leaders of their law firms, corporations and communities.

We also offer the popular Litigation Management College, which is conducted by FDCC members and geared to help claims professionals learn how to analyze and deal with litigation and resulting claims. Here, participants spend a week analyzing a single fact pattern from start to finish and understanding how a defense lawyer would handle the situation. Our Law Firm Management Conference is held every other year and is principally attended by law firm administrators and managing partners exploring the nuts and bolts of running a law firm.

At last year’s summer meeting, the Foundation joined forces with Colonial Williamsburg, which has an incredible program – themed on what can be learned from the past – to develop a more educated and engaged citizenry. We are partnering with them by presenting and engaging in schools with students based on their existing learning materials. It’s a very exciting program that hits home with our members who already have contributed time and energy to school boards.

All the programs I have mentioned, including the Corporate Counsel Symposium, happen as a result of volunteer efforts and substantial investment of time by our members.

Editor: What are your plans for the future of FDCC?

Kaplan: Internally, my focus will include analyzing our current financial practices and aligning our committee structure – both administrative and substantive – to best facilitate advancing our mission and goals.  Externally, my efforts will center on educational initiatives, such as a webinar series currently under development, where firms can spend an hour and a half with new or experienced attorneys in a conference room and explore very relevant topics.

My plans include ongoing focus on issues that remain current for the defense bar, such as the electronic courtroom, but also to match these issues over to the corporate side for our in-house members, working with them to develop the company story and trial themes. We’d like to do a session on persuasive writing, which is a dilemma for all members, and also on understanding and improving the already strong relationship between inside and outside counsel.

FDCC’s new tagline is “Defense Lawyers. Defense Leaders,” and that’s absolutely who we want to be. We want to be leaders of the defense bar and we are confident that our members have the skills to earn that privilege and make that claim.

For further information, please visit www.thefederation.org.