The Editor interviews Mr. Abbott, a member of the Lawyers for Civil Justice "Lawyers Network," about a number of goals and activities related to civil justice reform that have been on the agendas of DRI and LCJ in recent years.
Editor: Tell us why your firm feels that judicial salaries should be raised.
Abbott: We are concerned that the salaries being paid to judges are not keeping up with the job market for talented legal professionals. This is best illustrated by the fact that the $165,200 a year salary paid to federal district judges is now less than what many large firms throughout the country are paying first-year associates. Many corporations are paying new law school hires almost on a par with federal judges. Federal judges have not received a salary increase since 1991 and were even denied a cost-of-living increase in six of the past fourteen years.
As a result of this trend, we are seeing more and more good judges leave the bench in favor of private sector jobs. If we want "professional" judges, which is what life tenure was meant to assure, we must get the judicial salaries at least on a par with law school deans. Essentially, that means judicial salaries need to double.
We also need to decouple judicial salaries from congressional salaries. Congressmen and Senators have many outside income opportunities that are not open to judges. For example, federal judges cannot receive honoraria and they are limited to extra earnings of about $25,000 for teaching.
Editor: Please tell us your views on expert evidence reform, including addressing the issue of junk science.
Abbott: Some progress has been made in this area with the more widespread adoption of the Daubert decision and its progeny. However, there is still much inconsistency in the manner in which Daubert is applied at the trial court level. Often the parties are not afforded a meaningful pre-trial hearing. And, frankly, some trial court judges have become adept at using the language of Daubert while not really giving full Daubert consideration to the issues. Saying you are keeping the gate while letting everything through actually does more harm than good!
Editor: Have you seen some progress toward tort reform?
Abbott: We still see a great need for tort reform in the arena of asbestos litigation. As you know, we have offices in Texas, Louisiana and Mississippi. Asbestos cases in Texas are being handled much more reasonably and fairly since the passage of reform measures involving the establishment of medical criteria and the creation of a state-wide MDL for pre-trial matters. We lack those kinds of measures in Louisiana and Mississippi.
Moreover, in multi-defendant toxic tort suits, reform is needed to implement a viable " Lone Pine " procedure to weed out unsupported claims early in the process. All too often, plaintiffs' counsel are permitted to proceed through years of protracted litigation only to eventually reveal that they cannot prove causation or exposure to some defendants' products.
We would like to see the passage of rules offering pre-trial measures that require such proof early on. This would result in greater judicial economy, significantly decrease the cost of litigation and help prevent abuses of the process by overzealous and unprepared plaintiffs' lawyers.
Editor: Are there any other civil justice reform efforts supported by you or other members of your firm?
Abbott: Abbott, Simses & Kuchler has, for several years now, supported Lawyers for Civil Justice (LCJ) and its various initiatives. We also share the goals of the Civil Justice Reform Group (CJRG), which seeks to encourage changes in the judicial climate that would provide a more level playing field for corporate parties to a lawsuit.
Our corporate clients are not trying to gain a tactical advantage through civil justice reform. Rather, they simply wish to be given a fair opportunity to have their claims and defenses reasonably considered and handled by competent and even-handed jurists. Our firm strongly believes that our corporate clients are entitled to that kind of fair treatment.
On a local level, Abbott, Simses & Kuchler has provided pro bono assistance to certain tort reform efforts in Louisiana and, as appropriate, reaches out to lawmakers on issues of importance locally.
Editor: Do you or other members of your firm head task forces or committees of LCJ, DRI or other organizations that deal with civil justice reform issues?
Abbott: Debbie Kuchler is an active member of LCJ and offers additional support for LCJ initiatives through her membership in the Federation of Defense and Corporate Counsel (FDCC).
Paul Lavelle is an active member of DRI and is currently a member of its Board of Directors. Additionally, at the Annual Meeting of the DRI during the second week of October, Paul was elected Secretary-Treasurer of the Organization.
In the former position, he was involved in the 2005 Board decision to establish DRI's Judicial Task Force which in 2007 published Without Fear or Favor. This is a report addressing the particular issues threatening the independence of state judges at all levels.
Paul also was involved in DRI's E-Discovery Task Force. He was its first chair and served in that position from 2002 - 2004. In that capacity he was the program director for three national seminars and a program at DRI's Annual Meeting concerning the development of the Federal E-Discovery Rules, as well as related case law. As DRI's E-Discovery Task Force Chair, he also submitted comments to the Federal Judiciary Rules Committee during the rule making process.
Paul is also a member of the National Foundation for Judicial Excellence. This organization, starting in 2005, has annually presented a seminar program, free of charge to state appellate court judges, to present a fair and balanced discussion of current issues facing the state courts. Topics of these seminars have included: Essential Elements of Justice; Judicial Independence and Client Privileges in the Modern Courtroom; Justice and Science; and, most recently, E-Discovery and Spoliation on Appeal: The Convergence of Law and Technology.
Charles Abbott is an active member of DRI and is currently serving his second term as the Vice Chair of the Organization's Technology Committee. The committee strives to meet the needs of its membership by keeping them apprised of recent legal rulings and to educate the membership in the use of new technologies in order to increase operational efficiency, reduce overall costs, and facilitate a better internal and external communication with customers, clients, other counsel and the courts.
Editor: Do you have anecdotal evidence of current abuses that call for reform and expert insights into solutions?
Abbott: One of the issues facing our clients in Louisiana is the need for workers' compensation reform. For example, claims by workers against their employers for occupational noise-induced hearing loss are not generally recognized by the courts as covered by workers' compensation. Thus, our clients are facing tort suits for claims which should be covered by the workers' compensation scheme.
The availability of appeal for multi-million dollar verdicts remains an issue in our area. For example, in Grefer v. Alpha Technical , et al., the plaintiffs' awards in a toxic tort suit against Exxon Mobil were over $56 million for special damages and over $1 billion in punitive damages. The punitive damage award was reduced to $112 million by the appellate court. However, Exxon could not get a stay of execution pending the appeal, causing it to pay $167 million before the judgment was stayed. 2007 WL 2473250 (La.App. 4th Cir. 2007). The rules that permitted such a result are inherently unfair and unduly penalize the defendant in big-verdict cases. This needs to change!
Editor: Why does your firm feel that it should support changes in the law, regulations and court rules that will achieve corporate counsels' goals of reducing litigation costs, improving the operation of the judicial system and leveling the litigation playing field?
Abbott: It is the right and fair thing to do. You know, as trial counsel in several "hell hole" jurisdictions, we see first hand how very frustrating it can be to defend a corporation against all reasonable odds. Often, it does not matter how strong the company's defense may be or how ably that defense is communicated; there is simply no fair opportunity for a company to prevail. Such a system is contrary to the core principles upon which our judicial system is founded; yet, the inequities persist.
Some judges and juries may believe they are appropriately balancing power by redistributing wealth from corporate defendants to private citizens. There was a time when corporate America was viewed to have had the upper hand in terms of resources to launch aggressive legal defenses. Those days have long since past. Legal department budgets are tighter than ever.
On the other hand, many plaintiffs' lawyers are well financed, technologically savvy, legally sophisticated and very talented. They are certainly not at a disadvantage - financial or otherwise - and do not need or deserve special, unfair assistance from judges or juries.
So, we would certainly like to see our corporate clients have a level playing field on which to present their legal claims and defenses. The issue goes to the heart of the legal system we love and serve: all parties, whether corporate or individual, should be given the same equitable treatment in our courts. This is a goal worth working toward and fighting for.
Editor: How has involvement in DRI helped improve the professional skills of lawyers in your firm?
Abbott: Many of our lawyers are active participants in DRI substantive law committees and attend their seminars. This experience has proven invaluable in keeping them on the cutting edge of developments in these substantive law areas.
We also subscribe to many of DRI's publications in both the areas of substantive law and professional skills. In fact our lawyers have published articles in and contributed chapters to DRI publications. We find these publications to be especially beneficial in providing information that is focused on the area of interest, and is both current and practical.
Lawrence E. Abbott is the managing director of Abbott, Simses & Kuchler, a law firm with offices in New Orleans, Houston, Jackson, MS and Covington, LA. Mr. Abbott's primary practice areas involve his role as a trial specialist. He focuses on products liability litigation, environmental law, toxic tort litigation, civil issues, pharmaceutical claims, railroad defense litigation, commercial disputes, admiralty cases and class actions. He can be reached in New Orleans at (504) 568-9393 or in Covington, Louisiana at (985) 893-2991.