DRI - Restoring A Level Playing Field

Wednesday, November 1, 2006 - 01:00

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

Martin: I have focused on representing defendants in mass tort litigation notably on behalf of the airline industry and manufacturers facing toxic tort litigation. I am more involved than ever before in representing large law firms in malpractice cases, both in Texas and elsewhere.

I am President-Elect of DRI. DRI is the largest national organization of defense counsel who defend all types of civil cases and has a broad based membership. For successive periods of three years each over the last nine years, I served as an officer of DRI, a member of its Board of Directors and Texas State Representative. Before that I was a loyal DRI member and attended many of its events. I was President of the Texas Association of Defense Counsel from 1996 to 1997.

Editor: Given corporate counsels' interest in civil justice reform, how does participation in DRI by the defense law firms they retain advance corporate counsels' civil justice reform goals?

Martin: DRI plays a major role today in promoting the civil justice reform goals of defense lawyers and their corporate clients. It is the voice of the defense bar and a counterweight to the tremendous power of ATLA, the organization of the plaintiffs' bar.

DRI was very involved with the electronic discovery rules that go into effect in December of this year. Several of us testified before the Federal Civil Rules Advisory Committee during the rule- making process. We submitted written comments as well. In addition, in each of the last six years, we have sponsored one of the leading seminars on electronic discovery to keep our members at the forefront of knowledge about this complex area.

More recently DRI has been involved in submitting comments on the Protective Order White Paper prepared by the Sedona Group. We felt that the initial draft of the White Paper was not defendant friendly. It allowed too much discovery of proprietary and confidential information. One of our past board members actively participated in that effort and submitted excellent comments.

DRI carefully monitors federal rule making, particularly with respect to rules on civil procedure and evidence. We are currently focusing our attention on proposed modifications of the summary judgment rule, Rule 56, as well as on Rule 30(b)(6) dealing with depositions of corporations and other organizations.

We have been active in a number of areas involving the judiciary. The two best examples are the National Foundation For Judicial Excellence (NFJE) and our Judicial Task Force.

The NFJE is a 501(c)(3) corporation that was started several years ago by DRI to provide continuing legal education for judges. It was initially funded by DRI, but it will soon become self-sustaining from contributions from individual defense lawyers, defense law firms, corporations, and others. Lloyd Milliken of Indianapolis has been President of NFJE for the past two years and now serves as Chairman of the Board. The NFJE offered a program in each of the past two years and the reviews have been outstanding. The programs have been limited to about 150 state supreme court and lower appellate court judges. We may be able to expand it to trial courts, but at this point it is limited to those audiences. The current President is Bob Scott of Baltimore, Maryland.

Our Judicial Task Force focuses on problems confronting the judiciary, notably lack of adequate funding for judicial salaries and court facilities and attacks on the judiciary coming from various sources, including the Judicial Accountability Initiative Law (JAIL) in South Dakota and from politicians, the media and the public. The Judicial Task Force is chaired by John Trimble from Indiana.

Editor: Please give our readers a sense of DRI's ability to influence civil justice reform by reason of its membership and its links to LCJ and to local, state and foreign defense counsel organizations. First tell us about DRI's role in LCJ.

Martin: LCJ is a national organization composed of defense lawyers and corporate counsel that work on civil justice reform issues. The defense organizations that are involved with LCJ are DRI, the International Association of Defense Counsel and the Federation of Defense and Corporate Counsel. The presidency of LCJ rotates among those three organizations. More details about LCJ and its civil justice reform agenda can be found on page 41.

DRI has over 22,000 members. Through its links to approximately 60 independent state and local defense organizations around the country, DRI and LCJ are able to enlist an even larger number of defense lawyers in support of their civil justice reform efforts. DRI does not control the state and local organizations, but we do have a lot of interaction with them. DRI has State Representatives from all 50 states selected by the respective state and local organizations. We have a Council Representative from Canada which is the equivalent of a State Representative in the U.S. We are in the process of developing a DRI European program on a more structured and organized basis with representatives from major European countries. We have an annual meeting of the State Representatives and they also gather for a meeting at our Annual Meeting every year.

Editor: Why is it important for corporate counsel to encourage their defense counsel to join DRI and to participate in activities that develop their skills and alert them to the strategies of plaintiffs' counsel?

Martin: Successful outcomes in individual cases are not only important to clients when viewed individually, but also make good law and thus contribute in a significant way to civil justice reform. We have an active amicus curiae committee chaired by John Grund, a distinguished defense appellate attorney from Denver. The committee receives various requests for amicus support and then recommends whether DRI will or will not be involved in filing a brief. This gives DRI an opportunity to weigh-in when important legal principles are involved.

Our educational resources are extensive. We hold approximately 22 national seminars per year. In addition to those, we have a number of teleconference seminars. We put out a number of publications that are listed on our website.

Our Annual Meeting held this year on October 11 through 14 in San Francisco was again a marvelous learning opportunity. We had a tremendous number of excellent CLE programs. Some of them were trial advocacy related, others related to issues such as Sarbanes-Oxley and internal investigations which are becoming more frequent. There was an analysis by some of the top appellate lawyers in the country of the new Supreme Court and predictions of where that court is headed. We had programs on alternative dispute resolution, expert witnesses and the paperless law practice. We had an outstanding three-hour presentation by Larry Pozner on the cross examination of scientific witnesses and an hour and a half was devoted to a superb electronic discovery presentation. And our new President, Pat Long, was inducted.

DRI provides the best quality legal education programs for defense lawyers anywhere. The DRI seminars are considered to be the gold standard for legal education of defense counsel. In addition to our substantive law committees, we provide the opportunity for exchange of ideas online among lawyers who practice in the same area of the law. These e-communities enable members to network with each other between meetings about everything, including expert witnesses and case law developments.

Our seminars cover the strategies and the approaches taken by the defense bar in court cases both in tort litigation and in ordinary commercial litigation. DRI has in recent years expanded its reach to cover such areas as intellectual property litigation. In connection with our seminars, lawyers defending clients in particular industries or with respect to particular types of cases have an opportunity to get together separately and discuss the issues pertinent to those areas of practice and exchange ideas. Some corporations have taken advantage of the opportunity that we offer to hold meetings with their counsel.

Editor: Tell us about the research tools available through DRI.

Martin: Countering junk science has been high on the list of DRI's civil justice reform objectives. It is important for defense counsel to have information about witnesses and their testimony that can enable them to challenge their testimony and credentials. As a service to defense counsel, we maintain a large expert witness databank that includes many thousands of depositions, trial transcripts, curricula vitae, resumes and other information about expert witnesses. The databank is also a good resource for searching for defense experts. We have many other research tools on our website.

Editor: I understand that corporate counsel are also involved in DRI.

Martin: DRI has many corporate members and membership entitles them to have a designated number of their corporate counsel receive DRI publications and other benefits. In addition, many corporate counsel join as individual members. Corporate counsel are actively involved in our committees and seminars. We have had in-house corporate counsel on our Board of Directors, and we've had at least one officer who was corporate counsel.

We do not have a formalized corporate counsel group within DRI but opportunities are provided at some of our seminars for corporate counsel to have a private breakfast meeting or luncheon meeting among themselves during the seminar.

Corporate counsel have been particularly concerned about challenges to the attorney-client privilege. This subject was not only covered at this year's annual meeting, but was also covered in a number of DRI seminars, including our white collar crime seminar. It was a hot topic at the NFJE program which we held in Chicago in July and at our 2006 Corporate Counsel Roundtable, which is held on an annual basis by invitation only. The attendees are limited to general counsel and heads of litigation of Fortune 250 corporations. That topic will also be discussed at the 2007 Corporate Counsel Roundtable.

DRI also has a new publication for in-house counsel called In-House Defense Quarterly .

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 plaintiffs 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 the DRI. The purpose of this interview is to explore with Mr. Martin how corporate counsel and their law firms' partners can benefit from DRI and support its activities both in the handling of individual cases and in addressing the need to make systemic changes that will restore a level playing field.