DRI: A Strong Voice Of The Defense Bar, A Strong Advocate For The U.S. Judicial System

Sunday, April 22, 2012 - 13:17

The Editor interviews John H. Martin, Partner, Thompson & Knight LLP, former President of DRI and Lawyers for Civil Justice (LCJ).

Editor: Tell us about your practice and your history with DRI.

Martin: I have been a defense lawyer for over 30 years, handling primarily cases involving airlines, aviation products, and pharmaceutical products and defending law firms in legal malpractice cases. I do some commercial litigation but the others constitute the bulk of my current practice. I have been a long-time member of DRI and served as president of DRI for a one-year term beginning in October 2007 and Lawyers for Civil Justice in 2010 - 2011.

Editor: DRI has recently established the Center for Law & Public Policy. How will this new aspect of the organization better serve the corporate community and DRI members?

Martin: I compliment DRI on establishing its Center for Law & Public Policy. DRI has a very active public policy committee and supports an amicus program that is actively involved in filing briefs in the U.S. Supreme Court and other courts. The idea behind the Center is to bring together DRI’s policy-based activities – and thus to better project the entire organization and its roster of public initiatives to its corporate constituency and membership. The Center provides a substantive vehicle for DRI to serve as “The Voice of the Defense Bar” and communicate the defense perspective to the public much more effectively than it was able to do before.

Editor: DRI plays an important role in judicial education. Tell us about the National Foundation for Judicial Excellence.

Martin: The NFJE is a 501(c)(3) corporation that was started by DRI to provide continuing legal education for judges. It was initially funded by DRI, but it has become self-sustaining from contributions from individual defense lawyers, defense law firms, corporations, and others. The programs have been limited to about 150 state supreme court and lower appellate court judges.

Editor: During your term as president of DRI, it vigorously moved forward with implementing the recommendations of Without Fear or Favor, the Report of DRI's Judicial Task Force. What was the major theme of that Report? 

Martin: It focused on the issue of judicial independence, which is the cornerstone of our civil justice system because if you don't have an independent judiciary you can't have a fair civil justice system where the rule of law prevails. The Task Force Report looked at trends that were undermining the independence of the judiciary and concluded that these included inadequate judicial salaries, inadequate court funding, lax court security, unjustified media attacks on the judiciary, large campaign contributions and too little focus on merit in the selection of judges. Under the leadership of Chair John Trimble of Indianapolis, the DRI Judicial Task Force found that unless these trends are reversed the rule of law in this country will be in serious jeopardy. The Task Force Report recommended specific steps that can be taken by the defense bar to reverse those trends. If judges are inadequately compensated, the judiciary is unlikely to attract enough quality candidates with the experience and other attributes required to be truly independent.

The compensation situation with respect to trial counsel in the private sector is quite different. Corporate counsel feel that with their current exposure to the expenses and risks inherent in today's litigation climate, they must have the best possible representation. In turn, law firms are in competition with each other to attract the best and the brightest lawyers to their firms, resulting in significant increases in the compensation offered by some corporate litigation firms to recent law school graduates, and to attract seasoned litigators to join their firms as lateral hires.

The result is that the compensation of first-year associates, let alone that of seasoned litigators, exceeds that of many trial court judges. Because of this income disparity, fewer private-sector lawyers with expertise in commercial and corporate law can afford a significant reduction in income to become judges. Increasingly, judges are being drawn from the public sector, where there is less opportunity to gain experience in commercial and corporate law. Our justice system needs judges from different backgrounds, and the decline in the number of judges coming from private practice is disturbing. And, unable to maintain their standard of living on judicial compensation, many talented and experienced judges are moving into the private sector. Even the compensation of arbitrators can far exceed that of judges.

Editor: How can DRI and its corporate partners improve the civil justice system with respect to judicial salaries?

Martin: Unfortunately, Congress and many state legislatures still have not seen fit to offer reasonable salaries to our judges; it is a most unfortunate situation, and DRI will continue to work on that. LCJ has taken some strong positions here, as have many of the state organizations, because we need a strong judiciary. With its government system consisting of three coequal branches of government, the U.S. needs a strong judiciary, including judges who are compensated fairly. There have been, and still are, situations in some states where they can’t sustain court activities throughout the entire year; they have to shut down during certain months because they simply don’t have enough funding to hold court. That is a very tragic circumstance that I have read about, but thankfully not experienced personally.

Editor: Tell us about the work of DRI’s Jury Task Force during your presidency.

Martin: The Jury Task Force was created to address a tremendous problem around the country, particularly in some large metropolitan areas, with people either not reporting for jury duty or, when they do show up, creating 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 same ones who go to great lengths to avoid jury service. To address these problems, DRI launched 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. It published a Jury Task Force Paper to guide the local organizations that participate in this program.

Editor: In the past several years, DRI has run one of the most active and successful amicus programs in the country. To what do you attribute this success?

Martin: The number of amicus filings from DRI has increased dramatically over the last five years or so, creating one of the country’s most active bar organizations that files amicus briefs in the U.S. Supreme Court and in other courts. We have received good publicity, and some courts have referred to our amicus briefs, so we’re very pleased with how that effort has progressed. DRI also gets involved with matters before the Supreme Court in more ways than amicus briefs. For example, DRI made a number of members available to answer questions from other lawyers or from the public about the healthcare arguments in the U.S. Supreme Court. While DRI did not take a position as an organization, it was available to provide expertise on the subject.

Editor: Corporate counsel members of DRI can now attend DRI’s highly acclaimed substantive law seminars tuition free. What are the main features of this program, and how would you rate its success?

Martin: With the economic downturn some corporations really cut back on budgeting for in-house lawyers to attend outside seminars, so DRI stepped up very quickly and started a program whereby corporate counsel could attend DRI seminars without having to pay the tuition. I’m told the program has been very successful and well attended by in-house lawyers, which is a good thing for all members.

Editor: DRI has been very active in supporting the efforts of Lawyers for Civil Justice (LCJ) to change the Federal Rules of Evidence and the Federal Rules of Civil Procedure to level the playing field. What are your thoughts on these activities?

Martin: DRI’s role in supporting changes in the rules has been through its involvement with Lawyers for Civil Justice. DRI and the two other defense organizations that participate in LCJ – the International Association of Defense Council and the Federation of Defense and Corporate Counsel – support LCJ’s efforts.

Editor: We understand that, although it is very influential in Washington, LCJ needs and gets considerable assistance from organizations like DRI in seeking rules changes in the federal and state courts.

Martin: Most civil litigation cases take place in state courts, and while some states simply adopt and follow the Federal Rules of Civil Procedure, most develop their own rules of procedure. State rules vary fairly significantly from one state to the next, so DRI has selected certain states in which to address pertinent aspects of the civil justice system. Electronic discovery, for instance, has been a huge problem ever since electronically stored information (ESI) became so pervasive; thus, DRI and some of its members have been very involved in working with state supreme courts and rules committees in trying to develop better rules with regard to the discovery and preservation of ESI.

Editor: You’re also very active in DRI’s state counterpart in Texas, which has also been involved with the rules in Texas, which I understand are quite sophisticated.

Martin: As president of the Texas Association of Defense Counsel in 1996-97, I was certainly very active. I have not been nearly as active in recent times, but the TADC has a strong presence in the Texas legislature, with a goal of ensuring that the civil justice system is fair and balanced for all participants.

Editor: You have shown extraordinary devotion to the various organizations in which you’ve been involved.  How do you manage the demands of a busy practice and maximize your efforts for these organizations?

Martin: During the year in which I was president-elect and president of DRI, and during the year I was president of LCJ, I spent a tremendous amount of time on those organizations. I am pleased to have returned to my work as a full-time defense lawyer – and currently devote most of my time to practicing law – but I remain involved with DRI and LCJ to the greatest extent possible.

Please email the interviewee at john.martin@tklaw.com with questions about this interview.