Civil Justice Reform - Organizations Defense Counsel Organizations: Addressing The Long Term Interests Of Clients Through Civil Justice Reform

Thursday, December 1, 2005 - 01:00

At the Editor's request, the presidents of each of the founding member organizations of Lawyers for Civil Justice describe for the benefit of our readers the respective contributions that the organization and its members are making to civil justice reform.

DRI - Civil Justice Reform Activities

In recent months, DRI, which represents more than 22,000 members of the defense bar, has engaged in numerous activities aimed at improving the civil justice system. As one of the founding entities of Lawyers for Civil Justice (LCJ), DRI participates in that organization's collaborative efforts between defense lawyers and corporations to improve the civil justice system. In addition, our organization annually undertakes individual reform activities which include these recent initiatives:

Judicial Education - Recognizing the need for balanced judicial education on topics relevant to the defense bar and its clients, DRI established a non-profit foundation, the National Foundation for Judicial Excellence (NFJE), to address important legal policy issues affecting the civil justice system through a program of judicial education and support. At its inaugural July, 2005 symposium, the NFJE hosted one hundred thirty-six (136) state supreme and intermediate appellate court judges from thirty-nine (39) different states. The educational program "Justice and Science" examined issues relating to the admissibility of scientific and other expert evidence, and it was extremely well-received by the judges in attendance. A second symposium is planned for July 2006 in Chicago.

In addition to this program, DRI is further supporting expert testimony reform through our active participation in LCJ's "States Rules Project." This program is designed to improve the various states' rules of civil procedure relating to the admissibility of expert evidence.

E-Discovery - Not only did DRI leaders provide testimony at multiple public hearings conducted by the Federal Judicial Conference Civil Rules Advisory Committee concerning proposed changes to the Federal Rules of Civil Procedure on electronic discovery, but we also made a large financial grant to LCJ to promote its efforts for e-discovery reform.

Amicus Program - Through the work of its Amicus Committee DRI frequently provides support on cases of national impact involving civil defense issues. Recent activities include the filing of briefs in the following cases:

a. Avery v. State Farm Mutual Auto. Ins. Co., which overturned a $1.2 billion plaintiff's verdict after an Illinois state trial judge improperly granted nationwide class action treatment in a case involving the use of non-original equipment in insurance-covered auto repairs.

b. Sutton v. St. Jude Medical, Inc., a Sixth U.S. Appellate Circuit products liability case in which the plaintiff's only "injury" was an alleged increased risk of future harm from the implantation of a medical device.

c. Weil v. Dillon, where a lower court decision precluded the defendant corporation from discovering essential information regarding pre-existing injuries and diseases.

Legislative Response - Through our comprehensive web site capabilities DRI monitors state and federal legislation that has potential impact on the defense bar and its clients. When such bills are pending a vote, we marshal the support of the entire membership through broadcast emails or tailor that support with a more focused group.

DRI is taking the lead position in urging Congress to extend the Terrorism Risk Insurance Act until December 2007, and the leadership of our TRIA Committee presented a "White Paper" during Congressional hearings that outlined the pressing need for the continuation of the current legislation.

Class Action And Other Reform Efforts - DRI engaged in a variety of efforts in support of the Federal Class Action Fairness Act, which included contact with our membership urging them to contact their Senators and U.S. Representatives. The DRI Board of Directors also adopted a position statement in support of the legislation.

Likewise, through the combined actions of DRI and our State and Local Defense Organizations, we are working to enact state legislation in areas such as protective orders, punitive damages, and related reform issues. DRI is also a participant in the Sedona Conference's Protective Orders Project, and representatives from several DRI Substantive Law Committees worked to draft model Campbell jury instructions on punitive damages.

DRI appreciates The Metropolitan Corporate Counsel's interest in civil justice reform issues and the opportunity to inform your readers of our activities aimed at addressing these critical challenges facing the U.S. judicial system.

David E. Dukes, President

The FDCC: On The Front Lines In The Battle For Civil Justice

The Federation of Defense & Corporate Counsel (FDCC), one of the founding members of the Lawyers for Civil Justice (LCJ), continues to partner with the LCJ to fight for a level playing field in the civil justice arena. The Federation has mobilized its members in all 50 states to act as "ground troops" in the state-by-state and national battle to bring fairness to legislative and judicial issues affecting defendants in civil litigation.

The Federation's 1,300 plus members are committed to the ideals of the LCJ. The mobilization of the "troops" has been accomplished by organizing the Federation members by state. Each state has a representative who, in turn, reports to a northern and southern coordinator for civil justice. These coordinators then report to the state representative chairman who is in direct contact with the President of the FDCC and, in turn, with Barry Bauman, Executive Director of the LCJ. When a legislative or judicial alert is received, the message is passed down the line to the state representatives in the affected state(s). The representative then contacts all FDCC members within that state and mobilizes a lobbying force to respond to any challenge or to initiate affirmative action plans. In this way, information is disseminated rapidly to those influential FDCC members within a state to affect pending legislation or propose reforms. This "rapid deployment force" has worked well on many issues ranging from class action reform to protective orders.

The Federation also acts in support of civil justice reform through legal research assistance and letter writing campaigns (via e-mail and U.S. mail). Federation members lend their legal knowledge to positions taken by and through the LCJ, as well as initiatives taken on their own. A wonderful example of a current FDCC initiative is the ABA proposal relative to attorney-client privilege. The Federation has been recognized by the ABA as a leading supporter of maintaining the confidentiality of communications between a client and his lawyer in the civil arena. The FDCC has submitted a White Paper dealing with the importance of the preservation of the privilege - especially as it relates to our insurance and corporate members. The FDCC White Paper insightfully noted that any attempt to erode confidentiality through waivers of the privilege begins a journey down a slippery slope that can destroy these historical protections. The Federation has encouraged its sister defense organizations to join in the effort of preserving the attorney-client privilege and work product doctrine. To date, the DRI, LCJ and ADTA have joined the FDCC in support of the Federation's efforts.

The recent success of the amendments to the Federal Rules of Civil Procedure concerning electronic discovery occurred as a result of a joint effort by the LCJ, the FDCC, DRI and the IADC. The FDCC contributed to this effort through scholarly contributions as well as testimony before the panel considering the amendments to the rules.

The Federation continues to put a high priority on civil justice reform. The priority is reflected in the commitment of the organization and its members to the efforts to keep the civil justice arena fair and balanced.

Lewis F. Collins, Jr., President

IADC Works With LCJ And Corporate America To Level The Playing Field

The International Association of Defense Counsel (IADC) is a 2400-member international organization of private-practice lawyers, corporate counsel, and insurance executives. Membership is invitation-only and peer-reviewed. We are trial lawyers first, but we recognize that our professional and ethical obligations require us to address the system from time to time, when inequities place the system and some participants at a disadvantage. The IADC co-founded LCJ in 1987 to provide a more focused tool for civil justice reform. Today, IADC works - with LCJ and independently - to assure that the civil justice system serves its purpose: resolution of disputes on their merits, efficiently, and without regard to politics or economics.

IADC provides assistance to LCJ when and where requested. When LCJ asked for assistance with its efforts to encourage passage of e-discovery rules for the Federal Rules of Civil Procedure, IADC selected more than twenty of its members to submit written positions and/or to testify before the Advisory Committee. IADC did more than just recruit the appropriate communicators, however. IADC worked to ensure that its participating members understood the approach and content marshaled by LCJ, so as to avoid well-intentioned but counterproductive actions by individual members. As a result of the efforts of all LCJ members, amendments proposed and endorsed by LCJ and IADC will become effective shortly.

IADC members have always participated in the legislative process, and they still do, regardless of whether or not LCJ has stepped into a particular arena. IADC members were intimately involved with LCJ in the near-epic campaign to reform class actions in America. Many observers have identified several IADC members as key laborers in the effort that led to Congress' passage in 2005 of the Class Action Fairness Act in 2005.

IADC works on a more local scale through its own Legislative, Judicial, and Governmental Affairs Committee, chaired for the last three years by in-house counsel Ed Pickle from Shell Oil. Literally any member of IADC can ask this Committee to solicit lobbying or communications assistance from the entire IADC membership on a matter of state or smaller interest. As a result, IADC has facilitated local action by alerting its members to the issue and placing interested members together with other informed and engaged participants, thus effectively marshalling reform assets. In IADC's experience, it frequently is more effective and more tactful for individual members to speak on a more personal level than for an international organization to wade into a "local" issue.

IADC learned long ago that education is key when it comes to educating its private-practice members on the issues surrounding civil justice reform. IADC conducts a Corporate Counsel College each spring in Chicago. The admissions process ensures that more than half of the audience will be in-house, and IADC's in-house counsel members design the program and select the speakers, almost all of whom are in-house. IADC uses this event to educate its private-practice members on what is worrying its in-house members. As a result, IADC keeps its finger on the pulse of civil justice inequities being visited upon real defendants with real exposure.

IADC looks forward to another 85 years of cooperative and fruitful effort with LCJ and its in-house members in the civil justice reform arena.

Gregory M. Lederer, President

Please email the authors at david.dukes@nelsonmullins.com, lcollins@butlerpappas.com and glederer@simmonsperrine.com with questions about this article.