March 21, 2019

PRESIDENT’S ADDRESS:  March (Part 3) 

This past month I enjoyed the opportunity to speak with three legal giants, two past presidents of the American Board of Professional Liability Attorneys (ABPLA), and the immediate past president of the National Board of Trial Advocates (NBTA).

In this, Part 3 of my March address, I share the unique insights I gained from speaking with Jack McGehee, the immediate past president of the National Board of Trial Advocates (NBTA).  Jack is board certified in medical malpractice by ABPLA and sits on our board as well.

Jack McGehee, is the senior partner at McGehee, Chang, Landgraf, located in Houston, Texas. Jack has more than 38 years of trial experience and has brought over 306 cases to verdict. He is board certified in medical malpractice and has served on the ABPLA board since the early 1990s. Jack is the immediate past president of the NBTA.

Q:  Jack, please give us your insights as to board certification. Why do you think it's important, and where is it heading?

A:  Five years ago I got a call from David Rapoport who asked me if I would consider becoming president of the NBTA.  My first response was to push back.  But then I thought about it.  And then Randy, I went from being neutral to being very desirous of the opportunity... very, very, humbled… and very aggressive at what I thought I could do. I took it on as a personal cause and I really believed in it through and through. 

And I'm so frustrated at the profiteers around the country making money off of referrals . . . referring our clients to would be "competent" counsel who they claim are Super or Best. Unlike us, those groups don't have the urgency, the mission, to do it correctly and I think board certification, which I trademarked ("Board Certified-Proven, Tested Excellence” and is available for ABPLA members to use), should be the only criteria that clients use, or the biggest criteria.

We should mimic the medical profession where the first thing every patient asks her doctor is: “Are you board certified?"  And, over the years that has become the driving force.  Today 85% of the physicians are board certified and only 3% of the lawyers are board certified. And we need to change that paradigm and not give up ground to the profiteers who are only going to do things that make money.

So, I accepted and I wrote a five-year plan for the NBTA and it basically was, we are going to stop just certifying 5 specialty areas.  We are going to go out and certify every legitimate specialty area that we can.  I identified 22 areas, which was an arduous and painful process, and then started putting boards together, finding founding Presidents who could share the cause within that specialty. That was very difficult.

But now we have 10 board certification specialties on the assembly line waiting for board certification approval. Trucking became the first that made it through the process. Today you can become board certified in trucking accident law. Next will be immigration law. And, I think immigration has the biggest need for the country given this "so-called" immigration crisis.  There are so many lawyers willing to take money from desperate people without doing much of anything because they aren’t qualified. So I am truly committed in my heart that the future of our success is that board certification takes over the space dominated by the profiteers and offer immigration clients a better way to pick a qualified lawyer

Q:  How do we reach the public, because they do not know the value of board certification?

A:  Social media is going to have the greatest bang for the buck. It used to be billboards and telephone books or TV commercials, but that's been so diluted and the price points are so skewed… but social media can be used today to inform the clients looking for qualified lawyers.    And we are slowly moving there, but we need  a synergistic approach and social media is part of it. Need is also a part of it.  Let me give you an example:

We had a very disgusting experience in Houston following hurricane Harvey where there were quite a few lawyers out beating on the doors. Not necessarily qualified lawyers. Signing people up at 45% and taking a lien on their house to secure payment of their fee.

So the federal court had to decide which lawyer should be in charge.  The Judge  required  Statements of Interest from everyone who wanted to  lead the plaintiff’s side of the case.  What followed was a feeding frenzy.  There were 210 statements of interest submitted. And many of them were the guys who had never tried a case.  Sadly the federal court had no guidance to determine which of these folks were for real and which were not.  Imagine if you could become board certified in these kinds of cases.

So now fast forward to six months ago. One of the most distinguished federal judges who does MDL and who does class-action and who does mass torts agreed to be the founding president of the National Board of Complex Litigation Attorneys.  And for the first time the NBTA will  offer board certification for lawyers working in Complex cases. So, the next time there's a “beauty contest” for leadership, board certified lawyers should be the most "beautiful" [laughs]. And if that's the case, every lawyer should want to be board certified so that they can take part in leadership of class actions and other complex litigation.   We satisfied a need. We are doing that with patent and trademark, appellate law, immigration law,  health law and other specialty areas.  So your question is how do we get the word out?  I think we get the word out with the lawyers first, and then the lawyers are going to be talking about the benefits so much that I think it will take hold eventually. And while I don't have a formula to get there, I'm not going to just sit around and do nothing while the profiteers dominate.

Q:  Less cases are getting tried, it's evident from court dockets, and it's getting exponentially more expensive to try cases, so how do you maintain the degree of excellence in a shrinking trial environment?

A:  I’ve always been a proponent for the ABPLA to represent the best 100 or 200 people in the country.  The best of the best.  I never thought the ABPLA market should be 5000 board certified lawyers. So, I think, the cream of the crop, the truly most qualified  in our industry is you and the guys that did the hard things to become specialists.  ABPLA certification  shows the public that we've been there and tried cases... I'll tell you what, if you show me someone that has tried an injunction  or handled a bunch of hearings and put them up against you or an ABPLA  board certified trial lawyer in medical malpractice, it's a no-brainer who will succeed.  So I've never been in favor of relaxing the number of trials that are required. I don't think we should ever give that up.

Q:  So in terms of the NBTA, at present, how many specialties are currently offered?

A:  Now it’s about 10+6. We have 6 specialty areas that are approved by the ABA, and 10 that are on the assembly line.  And, as I said at the outset, I envision 22 total specialty areas.

Q:  Is the NBTA going to take the laboring oar in promoting each of the 22 specialty areas?

A:  Yes. We have produced three really good videos that are on the (NBTA) website.  They can be downloaded by our members. One is a client coming into a lawyer's office talking about board certification and, they are all really good and effective clips. In other words, once you get board certified, we'd like to give marketing ideas and marketing products to everybody who gets board certified so they can benefit from their certification. 

As you are all aware, the NBTA requested that ABPLA put on one of the  programs in New Orleans at the first ever NBTA All Star Conferences earlier this year.  The ABPLA nailed it.  The entire program was very, very well received.

 The NBTA does not offer board certification in the areas of medical malpractice or legal malpractice. Only ABPLA offers such certification, nationwide.

 As always, if you have not signed up for our conference this May in New York, immediately stop what you are doing, go to ABPLA.org, and sign up now.

Reeve and I leave Sunday for the ABA Roundtable.  I will let you know in April how the meetings progressed! 

March 13, 2019

PRESIDENT’S ADDRESS:  March (Part 2) 

This past month I enjoyed the opportunity to speak with three legal giants, two past presidents of the American Board of Professional Liability Attorneys (ABPLA), and the immediate past president of the National Board of Trial Advocates (NBTA).

In this, Part 2 of my March address, I share the unique insights I gained from speaking with William F. McMurry, a past president of the ABPLA. 

William F. McMurry, is the founder of William F. McMurry & Associates located in Louisville, Kentucky.  This year marks Bill’s 40th year of trial practice helping people across Kentucky recover compensation as a result of medical and legal malpractice, catastrophic personal injury and wrongful death. He is board certified in both medical and legal malpractice. Bill served as ABPLA president from 2010 – 2014.

Q:  ABPLA has ABA accreditation through 2023. At the recent ABA meeting (Winter) in Las Vegas, the subcommittee on legal specialization indicated that the ABA had no intention of leaving accreditation, but are examining all aspects of the process. Following up on your earlier response, do you still think it is in the best interests of board certification to have a contingency plan in place?

______________________

ABPLA is very fortunate to have Bill continue to serve on our board, as well as on our Oversight Committee, and our Standards Committee. Bill's work obtaining ABA accreditation for ABPLA gives him unique insight and, frankly, enabled me to hit the ground running.

While some of Bill’s message may have caused alarm, let me assure you it was not meant to be alarming. Rather, it simply reflects the work done on behalf of board certification, and therefore, ABPLA, on a day to day, month to month, year to year, basis, by all of our volunteers, board, officers, etc.

As I indicated in Part I of my March address, at the end of this month, Reeve McNamara and I will attend the ABA roundtable meeting held in Chicago Illinois. We will have considerable more information to share at that time. However, I do want you to rest easy. At the recent winter convention of the ABA in Las Vegas, Nevada, the specialization committee assured us that they had no plans of going anywhere.

Nonetheless, if board certification is important to you, let me again urge you to get involved. Come to our New York Conference in May. If you haven't been a conference attendee in the past, introduce yourself. If you have time to get involved, volunteer. If you can work on a committee, volunteer twice. If you have input on an issue raised by Tommy, Bill, myself, or anyone with ABPLA, please speak up. Together, we can protect the importance of board certification!

March 6, 2019

This past month I enjoyed the opportunity to speak with three legal giants, two past presidents of the America Board of Professional Liability Attorneys (ABPLA), and the immediate past president of the National Board of Trial Advocates (NBTA).  It is therefore only appropriate that I share the unique insights I gained from Thomas William Malone, William F. McMurry, and Jack McGehee.

For the hour or so that I spent breathing the rarefied air that surrounds these gentlemen, I became inspired and motivated. I hope sharing their words does the same for you!

This month, I begin with Tommy Malone. 

Thomas William Malone, (Tommy), is the founder of Malone Law located in Atlanta, Georgia. For more than 40 years he has litigated cases involving catastrophic personal injury and wrongful death. He is board certified in medical malpractice. Tommy served as ABPLA president from 2006 - 2010.

Q:  I know you were board certified in the area of medical negligence by ABPLA in the 1990s. What drew you to board certification?

Q:  Let me ask you about the qualifications currently required to receive board status.  In this day and age, and I guess court dockets pan this out, there are fewer and fewer trials taking place. Consequently, younger lawyers have less trial experience. Do you believe the trial requirement should be eased, or that the qualifications generally should be eased for new applicants?

A:  Well I think you could have two classes of membership. One group could be a member of the organization, but not board certified, until they met the requirements. But I do think our requirements are rather minimal. You know, you can't certify somebody that couldn't meet with the client in their office, sign the case up, investigate it, file the suit, obtain appropriate affidavits, proper workup, and try the case. You can't have them learning how to do it after they are board certified.

Q:  What do you think certification organizations such as ABPLA, NBTA, and others should do to promote awareness of the benefits of board certification?

A:  A massive media campaign. I've always thought that should take place. The organizations have to organize the message and promote it, but individuals that are board certified have to spread the message as well.

Q:  Tell me what your thoughts are with respect to medical malpractice in general. Throughout your career you have flourished handling medical malpractice cases. Yet these cases seem far more difficult than a more basic personal injury action. What are your thoughts?

A:  Oh I think it is one of the most challenging areas of the law. Certainly more difficult; all of the nuances, statutory regulations requiring affidavits from a doctor who is of the same specialty and has the experience in the field that is under consideration. And then the question of causation is much, much more difficult than in other cases such as a wreck case, where causation can be obvious.

Q:  What is an important message to deliver to prospective applicants regarding the board certification process?

A:  One thing that is not done adequately, I don't think, and it causes lawyers at the top of their field to not want to be board certified is because they have to pass an exam. And, everybody that is doing well in the field, without being board certified, don't want to run the risk of taking the exam and failing. But I was able to tell everybody that they would pass the exam, I was confident that they would, because I knew that they had tried cases, and were proficient in the field. It's not like the examination tests how smart you are, but instead it tests your proficiency and knowledge in the general area. 

Q:  Many of us have followed your battle with cancer. How are you doing today?

A:  Well, I am married to Florence Nightingale. I was told when I was diagnosed with stomach cancer in February of 2016, that if the chemo worked as well as could be hoped for, I had 9 or 10 months. That meant I would be lucky to make it Christmas, 2016. And, here I am, and there was no radiation, no surgical options, and I've gained 29 pounds through the shakes that Debbie (Florence Nightingale) makes me drink. And I'm hanging in there to everybody's surprise, including mine, and the worst part of it is chronic fatigue. It took me a year to learn how to answer the question. People would say "how are you doing", and I've got the answer for that now. I say "all things considered I’m doing fantastic!"

So, Tommy spoke, and we listened. I want you to know that just this past week, ABPLA Standards Committee met, under the leadership of Tom Sartwelle.  The purpose of our Standards Committee is to constantly review the qualifications required by ABPLA for an applicant to become board certified. The Standards Committee will report to the Board at our next board meeting in New York this May.

Additionally, our executive director, Reeve McNamara is currently working on several fronts, both for our plaintiff and defense lawyers in order to develop material as well as relationships beneficial to our board certified brethren.  For example, we expect to shortly be able to hand an entire packet of materials, including a video which may be placed on member’s websites, discussing the benefits of board certification. It is but one step in getting the message out. Additionally, with the assistance of several of our board certified defense lawyers, we will be meeting with medical malpractice insurance carriers in order to discuss the advantages of retaining board certified attorneys.

As I recently mentioned, Reeve and I will be attending the ABA Roundtable meetings. The ABA has indicated some desire to help educate the general public as to the benefits of board certification. Exactly what they have in mind, we do not know, but following the Roundtable, I will be sure to report.

Later this month I will present my discussions with Jack McGehee and William McMurry. My hope is to allow their words to motivate you. Get involved! Meet us in New York in May for our conference. Take a moment now and go online and sign up. Send an e-mail out with your thoughts and ideas about how to make your organization better. See you all in New York!

February 7, 2019

Forty-eight years ago, in February of 1971, the first attorney specialization certification program in the United States was announced by the State Bar of California, California Board of Legal Specialization. Notably, it began operations in 1973 with three practice areas initially available: workers' compensation, criminal law, and tax law. (The program has expanded to certification in approximately 12 select areas of law today).

You will be proud to know that the American Board of Professional Liability Attorneys was first organized in 1972. Without doubt, our organization has led for 47 years as one of the oldest board certification organizations for attorneys. Just to give you some depth, it was in 1973, at the Sonnett Memorial Lecture at Fordham Law School, that Chief Justice Warren Burger stated... "Some system of certification for trial advocates is an imperative and long overdue step."  We had already been in existence for one year by the time the Chief Justice stated the obvious need.

Between 1971 through 1990 seven specialty boards were formed. Five of these boards were formed by the states of California, Texas, Florida, Minnesota and North Carolina, while two of these boards were formed by not-for-profit organizations, namely the American Board of Professional Liability Attorneys (ABPLA) and the National Board of Trial Advocates (NBTA, which was formed in 1977). All of these boards have been in continuous operation since formation and their relationships are truly collaborative. I have learned this firsthand in recent months in working with our Executive Director, Reeve McNamara. Reeve has had to endure my naiveté as he has patiently brought me up to procedural speed while dealing with the interaction of all of the certifying boards, as well as the American Bar Association.

The American Bar Association became a guiding force for legal specialization beginning, at least, in the early 1990s. The ABA developed accreditation standards, and the ABA formed a Standing Committee on Specialization.  Legal specialization continued to grow from the early 1990s to present. In addition to the five state boards noted above, six more states developed specialization programs including, Arizona, Louisiana, New Jersey, New Mexico, South Carolina, and Tennessee. Accordingly, as of today, there are a total of 11 state boards and 7 nonprofit national boards which offer approximately 49 specialization areas.

Last month, Reeve and I attended the ABA Standing Committee on Specialization meeting held in conjunction with the ABA winter convention. Given that ABPLA standards meet, and exceed, the ABA accreditation standards, 23 states accept ABPLA board certification without more. Certain states, however, including California, Texas and Florida, require more. I am happy to report that your ABPLA board certification is recognized by all states in the United States save for Maine, Maryland, Oklahoma and West Virginia. (Even in these states we have board certified lawyers). With respect to the ABA, we are approved through 2023. With respect to the other states, thanks to Reeve's hard work, we remain current and are on top of all ongoing requirements by those states. So, were this a "state of the union", ABPLA remains strong!

However, our work has not even scratched the surface of what needs to be done. Just consider this: approximately 82% of physicians attain board certification. Contrast that with approximately 3% of the total lawyers that attain board certification.

So, once again I call upon each of you to get involved! We have many committees that are continuing the active work of ABPLA.  The Membership Committee constantly examines the membership criteria of our organization (which is an ongoing active debate), and develops outreach in order to actively recruit eligible attorneys. The Conference Committee plans our annual conference, arranges for speakers, sponsorships, exhibitors and otherwise handles all aspects of our Medical/Legal Conference. Our Advisory Committee looks to long-term planning of our organization, itself. Our Board is diverse and active. So, please get involved. Many of our diplomate's speak at various conferences throughout the United States. We have developed a short PowerPoint presentation that can be given at the introduction or conclusion of each such speech. The benefits of board certification are briefly discussed. Please contact Reeve ([email protected]), and ......... get involved.

Lastly, if you did not do it last month, stop what you are doing right now and calendar May 2-4, 2019 at the Park Lane Hotel in New York City. That is the date of our National Legal & Medical Malpractice Conference. It is a unique three-day CLE for both plaintiff and defense attorneys who have an interest in professional liability. We have an all-star faculty.

I look forward to a busy February and an even more busy March. Reeve and I will likely be attending the ABA National Specialization Roundtable in Chicago on Monday, March 25, 2019. May is right around the corner. I hope to see you all in New York City!

Randy