LCJ - Uniting Inside And Outside Counsel For Reform

Wednesday, November 1, 2006 - 01:00
McDowell, Knight, Roedder, & Sledge L.L.C.
Nelson Mullins Riley & Scarborough LLP
Simmons, Perrine, Albright & Ellwood P.L.C.
David E. Dukes
Gregory M. Lederer

Editor: Describe LCJ's mission and its organization.

Roedder: LCJ is a national organization of corporate counsel, defense practitioners and defense bar organizations dedicated to achieving civil justice reform. Our members bring together their various unique perspectives and expertise in order to attain significant reform in various areas, and to improve the administration of justice. We currently are undertaking major initiatives regarding e-discovery, expert evidence, new federal procedural rules initiatives, protective orders, proposed Federal Rule of Evidence 502 and the attorney-client privilege.

Editor: Why did LCJ seize upon those six topics as the priorities of the organization?

Dukes: LCJ was originally formed as the National Coalition for Litigation Cost Containment some twenty years ago by a dedicated group of corporations and various representatives of the DRI, Federation of Defense and Corporate Counsel and the International Association of Defense Counsel. It found ample evidence that the costs of litigation were rising rapidly, but there was little being done at the time to address the situation by either industry or the defense bar. The time it takes to resolve a case and the ultimate cost of litigation are significantly increased by abusive discovery, the use of unqualified experts, the exponentially greater volume of electronic data, and the like. Our efforts have evolved over time but remain focused on key areas where LCJ can make a difference.

Editor: Have these efforts proven to be successful?

Lederer: Yes, some of the LCJ programs have been extraordinarily successful and we attribute this to the outstanding work of the volunteers - both corporate counsel and defense practitioners. One area of success is the procedural rules program which has been responsible for encouraging judges to create a "level playing field" when it comes to federal and state rules of procedure and evidence. For example, most recently, LCJ strongly supported the adoption of the new rules governing discovery of electronic information. These new rules are scheduled to go into effect on December 1 of this year. I do not think this would have come about without LCJ's vigorous e-discovery program. Of course we have also benefited from the remarkable leadership in the Federal Judicial Conference and specifically those judges who have taken it upon themselves to address these complex problems.

Editor: Do some of these judges attend the LCJ programs?

Dukes: That's right, the New York winter meeting focuses on the judiciary while the spring meeting in Washington focuses more on legislative efforts. We have been very fortunate to have speakers who are among the giants in the judiciary. We recently featured Texas Federal District Judge Janis Jack who spoke of the importance of sound science in the courtroom at our May meeting. Federal Magistrate Judge Ron Hedges is scheduled for the December meeting as is Texas Supreme Court Justice Nathan Hecht.

Editor: Describe LCJ's new federal procedural rules initiative.

Lederer: LCJ has been monitoring the activities of various committees of the Federal Judicial Conference and we have encouraged them to address many new issues including some which are designed to ensure the quality of "expert" testimony, improve the reliability and fairness of employee-expert written reports, require more particularized pleading, and facilitate the disposal of cases by motions for summary judgment at an earlier stage. We have submitted formal comments for consideration to the committee regarding FRCP 30(b)(6), 26(a)(2)(b), and 12(e).

It is always extremely important that the need for rules changes be vividly illustrated and supported. Corporate counsel and their outside counsel can help facilitate this by testifying and submitting comments on proposed new rules and we encourage this strongly.

To help LCJ in this or any other effort directly, please contact Executive Director Barry Bauman at 202-429-0045 or

Editor: Describe LCJ's expert evidence reform program. How can corporate counsel and their law firms contribute to this program? Who should they contact?

Roedder: Our expert evidence program is unique in that it is tailored to target specific states where reform is both needed and attainable. LCJ currently has in place state "action teams" in Virginia, Illinois, South Carolina, Oklahoma, Missouri, Mississippi, and Florida. Meeting each month via conference call, these groups of attorneys with local expertise design and implement a strategy to pursue expert evidence reform initiatives in their respective states. Currently, members of many of these teams are finalizing a draft MODEL bill which has been embraced by the American Legislative Exchange Council to guide state legislators as they consider related civil justice issues.

We are always happy to have interested parties participate on our calls. In fact, several corporations have already designated representatives to work with our state action teams. If you would like to participate directly with a particular state on this important issue, or if you have any information which may be of help to a particular state group, please contact LCJ Executive Director Barry Bauman.

Editor: Describe LCJ's efforts to preserve the use of protective orders in connection with document productions and settlements. How can corporate counsel and their law firms contribute to these efforts?

Dukes: Protecting corporate defendants' private and proprietary information is a central feature of LCJ's legislative program. This year, LCJ successfully opposed plaintiffs' legislative anti-privacy initiatives in Congress and in several states. We also closely monitor the activity of other organizations that may have an impact on policy and we encourage our members to participate in them. This year, we encouraged our members to participate in policy initiatives within the ABA and the Sedona Conference to ensure that the defense perspective is represented in their new policy guidelines.

As with all of our issues, it is important that corporations vocalize their support for protective orders, and make known how vital these can be to the short and long-term health of their companies.

Editor: Describe LCJ's efforts to protect the attorney-client privilege and work product rule. How can corporate counsel and their law firms contribute to these efforts?

Lederer: The LCJ Task Force on the Attorney Client Privilege has been charged with developing a position paper on proposed new rules regarding FRE 502 and to make recommendations on how to best preserve the attorney-client work privilege. LCJ members are working closely with other organizations to ensure that the defense perspective is reflected in new federal policy, and some members will be testifying at upcoming Federal Judicial Conference hearings to advocate the preservation of the attorney-client privilege.

One pressing issue is the ongoing implementation of the Thompson Memorandum , which continues to be defended by the Justice Department despite overwhelming opinion that it undermines the attorney-client privilege. Corporations can play a major role in pressuring the DOJ to revise the Thompson Memorandum so that it no longer makes it likely for corporations to be coerced into waiving their constitutional right to the attorney-client privilege.

This new task force is looking for dedicated members with an ability to contribute to its efforts. Please contact LCJ director Barry Bauman if you would like to become involved with this task force.

Editor: Given corporate counsels' interest in civil justice reform, describe generally how they, their corporations, and defense law firms can support LCJ financially and through involvement in its activities.

Roedder: LCJ is always happy to receive new corporate members and we select associate law firm members from among a list of applicants. We try to ensure geographic representation among the associate member law firm group and of course we will only accept those applicants who have a defense practice and share the LCJ philosophy of improving the system to make it more fair. We are always grateful to receive friendly help and input from attorneys and their organizations interested in civil justice reform.

Corporate help is also extremely important as an independent complement to LCJ's efforts. Whether we are dealing with federal or state legislatures, courts, or committees, it is very helpful to have corporations representing their own unique perspectives on the issues at hand, and illustrating the very tangible effects that rule makers' decisions will have on business.

Defense practitioners and corporate counsel are essential allies to one another against the organized and well-financed lobbies of the plaintiffs' bar. LCJ hopes to facilitate a closer working relationship between the two groups which will result in even greater success advocating the defense perspective of civil justice reform issues. The ultimate potential of these groups working together - though yet unrealized - is enormous. But through our efforts with the sponsoring defense organizations like the DRI, FDCC and IADC and by working with the U.S. Chamber Institute for Legal Reform and the Civil Justice Reform Group, we are much more likely to reach this potential.

Editor's Note: Partnering between inside and outside counsel has expanded its scope. Not only does it apply to the handling of specific cases and matters, but it also encompasses activities that address more pervasive concerns of legal departments and their corporate clients. Because it is so important for outside counsel to reflect the image of the clients they represent in such areas as diversity and dedication to pro bono and other community concerns, partnering in those areas has become well established. This newspaper provides a showcase for law firms to demonstrate the ways in which they partner in these areas in an effort to publicize best practices that other firms may wish to emulate with the encouragement of their corporate counsel clients. The need for partnering in the areas of civil justice reform and other areas where the public and private spheres intersect has been of growing importance. This is closely related to the growth of a plaintiff's bar that has become aware of the immense profit opportunities offered by litigation against corporations. The focus has shifted from representation of clients as a professional duty to an almost assembly-line manufacture of litigation directed against corporations as a way of building a personal fortune - and the playing field has tilted in favor of plaintiffs' lawyers. Their wealth has enabled them to make vast expenditures to influence legislation, judicial outcomes and the selection of judges. Restoring a level playing field has become a serious concern of corporate counsel - and to achieve this corporate counsel need the help of organizations like LCJ. The purpose of this interview is to explore how corporate counsel and their law firm partners can benefit from LCJ in addressing the need to make systemic changes that will restore a level playing field.