September 9, 2019

President’s Address:

As Stuart M. Speiser related there are four legs supporting the American Civil Justice System: The first is the contingency fee which provides that the client pays only if he or she wins; the second is the protection of losers against fee-shifting (having to pay the winner's legal fees) unless the loser engages in litigation abuse; the third is specialist lawyers who provide legal services equal in quality to those enjoyed by the affluent, without any cash outlay by the clients; and lastly, jury trials available in virtually all civil (as well as criminal) cases.  [see, Stuart M. Speiser, The Founding Lawyers and America's Quest for Justice, Pound Civil Justice Institute 2010, page 231].

Indeed, focusing on the third leg, I note that our legal system provides many highly qualified trial lawyers for those clients who can afford to pay their fees. Their services are essential to the overall scheme of the American Rule of Law since they either bring suit or defend those entities/individuals with the wherewithal to pay. It only makes sense that such lawyers would want to specialize, thereby providing their paying clientele with the added value of their board certified specialization.

So too, does our system provide highly qualified trial lawyers willing to work on a contingency fee. Their services are equally essential to the overall scheme of the American Rule of law. Necessarily these lawyers level the playing field by giving access to those less affluent who are nonetheless harmed by the negligence or wrongful conduct of another. It can therefore only make sense that such lawyers would want to specialize, thereby providing their clientele with the added value of their board certified specialization.

And therein lies the dilemma for all board certified lawyers. What seems so obvious in theory, and what clearly is a bedrock (one of the four legs) of our American Civil Justice System, remains relatively unknown for both the affluent, and the non-affluent. The sad reality is that the value of board certification has yet to be appreciated by the insurance industry and/or by the consumer, alike. And, to be blunt, I believe that until we organize, and get the word out to the consumer, as well as to the insurance industry and business, we are destined to remain an unknown but rich commodity.

I want your ideas. Together we are an amazing force. We have to change the perception of board certification, and we have to get the word out! We are too rich of a commodity for the concept not to take hold much as it has in the medical community. As we often say, who would undergo surgery with the non-board-certified surgeon?

So this month I implore you to get on the listserve and let's discuss a functional plan and implement that plan. There must be a two track process. On the defense side of the "v" I would like to see board certified lawyers throughout the country arranging meetings with the primary insurance companies within their state. We must speak with a unified voice and have a package prepared to present to each carrier educating them as to the benefit of board certification.

On the plaintiff’s side of the “v” it becomes a more difficult process. How do we educate the general public? Certainly we need to integrate into our respective communities and spread the word. However, short of a mass publicity campaign, which likely would be cost prohibitive, I need your input. So please, let's get on the listserv and talk. Let's help each other by educating the consumer and carrier alike as to the benefits of board certification!

In closing, I note that summer rapidly came to an end. With the end of summer, however, came disaster. As each of you are aware, hurricane Dorian spread apocalyptic doom in the Bahamas. It breaks my heart that our great past president, Tommy Malone, lost Snapper Point in the Abaco's to Dorian.  Snapper Point was truly a slice of heaven. Spread over many acres were beautiful homes, a marina, pool and tennis court. It fundamentally changed my outlook on life to have spent time there. Tommy often offered Snapper Point for our board meetings. So, Tommy and Debbie Malone, we give our prayers. Snapper Point may be gone, but it will never leave the memories of those who were blessed to have spent time there with Tommy and Debbie.

What you may not be aware of is that Tommy and Debbie employed many in order to maintain the property for their guests. Mike, the foreman on the property, together with his wife and family equally lost everything. Keva, in charge of maintaining each of the interiors likewise lost everything.  Xante, who performed heavy lifting on the property likewise lost everything. Each family is experiencing apocalyptic conditions. If any of you wish to assist these families, I provide links to a “go fund me page” below. It is extremely difficult for these families to exist, so please consider giving.  Until then, please keep Marsh Harbour and all of its people in your prayers.

https://www.gofundme.com/snapper-point-families-marsh-harbour-abaco?pc=em_co_shareflow_m&rcid=r01-156772947963-d885ef83aef84a0e

July 30, 2019

President’s Address:  July, 2019

President’s Address:  July, 2019

I dictate this month’s President’s Address while waiting for a plane at the San Diego airport.

The American Association for Justices’ annual convention just ended.  My dear friend, Bruce Stern, was just sworn in as AAJ’s newest president.

I have been attending ATLA (now AAJ) conventions for over 30 years. It would be an understatement to indicate that I have formed strong friendships with AAJ lawyers from around the country. In fact, I can confidently say that for me, these conventions are more about friendships than about MCLE.

ABPLA is about the same thing.  Strong friendships with talented lawyers from around the country.  The more time that passes, the more I look forward to ABPLA’s next conference. A time to catch up with friends and true professionals. We are in the closing weeks of finalizing our location for next year’s seminar. It looks to be an all-time great.  Standby for further information.  And, the only hint I’ll give you, is get ready for the sun!

As a past president of the Belli Society, I attended the Belli Seminar, the black-tie Belli dinner, and of course, the Belli board meeting. As with ABPLA, discussions at the board meeting dealt with the organization’s desire to remain relevant, serve its members, and the age-old debate about whether to relax trial standards in order to attract a younger membership. It would appear that many organizations are grappling with the same issues.

Please utilize our Listserv ([email protected]) and chime in with your thoughts as to whether, as a general proposition, we should lower our standards, (trial requirements, or otherwise), in order to attract younger members.  I am very interested in your thoughts!!  

It should come as no surprise that our Standard’s Committee has been closely analyzing this issue. In fact, the ABPLA board discussed the issue for a considerable time at our last board meeting. We need your input and help. Please use the listserv and let us know your thoughts.

As I close, I do know that today is day one of the California Bar Examination.  My son is hard at work answering essay questions or whatever else comes up on today’s examination.  I think I’ll have another glass of wine while waiting for the flight. I guess age does bring with it certain benefits.

June 25, 2019

President’s Address:  June, 2019

President’s Address:  June, 2019

Summer is here! As with many of you, summertime means we have graduations to attend. I recently attended my son's graduation from Boston College School of Law where he attained his Juris Doctorate degree. Mind you, in his three years of legal studies, he also managed to obtain an LLM in international law from the Sorbonne. (He obviously inherited his smarts from his mother's side of the family).

While attending the graduation ceremonies, I reflected on the future of board certification. It is no secret that our profession is evolving. The number of cases being tried throughout the United States has been decreasing for decades. It is therefore absolutely necessary that each of us provide the young lawyers of today with a pathway to trial.

My son is now deep into his bar review course, studying on average eight hours per day. He will take the California bar at the end of July, and then he returns to Boston in February to take the Massachusetts bar.

My next trial is scheduled to go out mid-August. Of course my son will not yet have received his California bar results, but I assure you he will be sitting with me at counsel table throughout the entire case. In fact, I may get two additional cases out to trial before he receives his California bar exam results in November of this year, and my goal is to have him with me at each.

I think it is absolutely imperative that we all extend the opportunity of trial experience to the young lawyers in our orbit. As our legal system evolves, it is critical to have qualified trial lawyers filling the ranks of lawyers and judges that comprise our chosen profession.  Of course, trial experience is a necessary prerequisite to board certification through ABPLA. 

I do note that while trials may be decreasing, many of us are busy actually trying our client’s cases. We seem to be that last bastion of trial lawyers keeping jurors busy.

There was a recent study performed by the Association of American Law Schools (AALS), the American Bar Association Section of Legal Education and Admissions to the Bar, together with numerous other organizations, that looked at the factors that led students to attend law school. The factors that motivated first year law students to law school show that passion for the practice of law is alive and well. Over one third of the students surveyed stated that opportunities to be helpful to others was a top factor in considering law school. Law school was also identified as a pathway for a career in politics, government, or public service by at least 30% of those surveyed.

Protecting American democratic institutions, the rule of law, and our jury system, is an absolute imperative. Almost one half (47%) of the first year students surveyed indicated that they had a high interest in the type of work that we, as lawyers, do every day. That should be inspiration to all of us.

As a young lawyer, my legal career started under the tutelage of Melvin M. Belli, Sr.  To this day, I can remember Mel stating with passion that we, as trial lawyers, are the only ones that take the Constitution out of its glass case and put it to work on a daily basis.

Indeed, we are trial lawyers. Ours is a noble profession. Those among us specializing in the trial of professional liability cases are uniquely privileged. As Belli once said, I make no apology for being a "trial lawyer." Anyone who can successfully obtain verdicts in damage suits and have those verdicts sustained on appeal, is capable of entering any type of litigation. Likewise, anyone who can professionally defend a case is capable of handling any type of litigation.

I think one of the reasons for the fascination of the trial lawyer lies not perhaps in the characteristics necessary to deal with the human element of the trial, and the mechanics necessary to obtain a judgment, but rather in fortitude. Just plain, old-fashioned heart. One who is without heart, without ability to stand it when the going is rough, when he is in the trough of the sea, has no right to enter the field of trial law. Perhaps here more than any other realm of the law, one finds stouthearted men/women and discovers the truth of the saying that "valor consists in the power of self-recovery."

How many of you have not walked out of the courtroom at the end of the day when the opposition, and perhaps the court, have all but thrown chairs at you? Yet you came back the following day to overcome the obstacles of yesterday and to continue on to a successful verdict. Even though the court itself may have seemed against you, when you obtained that verdict, you found you had some modicum of respect from the court, if not from opposing counsel. So, I say to you each of you, take a young lawyer under your wing. Guide that lawyer in the profession of trial work. That is, after all, what we do.

May 22, 2019

President’s Address:  May, 2019

It's a wrap! The ABPLA National Legal and Medical Malpractice Conference was held May 2-4, 2019 at the Park Lane Hotel in New York City. I left the conference absolutely exhilarated. I needed a vacation from my seminar “vacation”. 

I always come away from our Conference feeling reenergized. It is great spending time with so many colleagues and friends from around the country. And then . . . there is the MCLE. 

The Thursday, May 2^nd Program opened with Susan Witt who shocked the audience with live video of the "dancing doctor” from Atlanta. Next up, another Atlanta powerhouse, Adam Malone, talked to us about overcoming challenges in medical negligence cases. The program turned to legal malpractice as Ronald Minkoff reviewed causation through a series of case studies. Trial practices was next, and Patrick Malone wowed the audience as he reviewed fearless cross-examination technique. Not to be outdone, the Thursday program ended with Mark Bower and Nursine Jackson reviewing electronic health records and audit trails.

Friday's program branched away from the traditional 50 minute presentations, and was power packed with a number of 20 minute fast hitting discussions. First up was Karen Winner who reviewed tragedies with the family law system in New York State. Dr. Charles Rawlings next thoroughly reviewed Cauda Equina Syndrome.  Michael Kaplan, who teaches the only brain injury law school class in the United States (George Washington University), reviewed delayed diagnosis of stroke giving rise to malpractice. Grace Weatherly (incoming National ABOTA Vice President) put personal experience to task as she reviewed practicing law in a divided nation. Les Weisbrod (past President of the American Association for Justice), stunned the audience with a thorough review of the benefits of cooling a distressed infant at childbirth.  Chris Carey refocused on legal malpractice and Peter Wayne (Forge) reviewed special needs planning. Closing the program, Linley Jones (past President of the Georgia Trial Lawyers Association), captivated the audience reviewing jury selection issues with focus on the nationalist juror.

It was my honor at the ABPLA dinner Friday night to present Thomas P. Sartwelle with the Thomas “Tommy” W. Malone “Distinguished Service Award". This annual award, (given just one year prior to Gary Brooks), is awarded to the consummate professional who demonstrates the highest level of ethical conduct, civility, and professional competence in the practice of law. It is an award earned, not simply given, and Tom Sartwelle epitomizes what we can only hope future awardees demonstrate.

Saturday's program was kicked off by our own Justin Kahn who dazzled the audience with his coverage of language and technology in the courtroom. His presentation was simply "magical". Following Justin, was Dr. Sharon Grouper who covered human interaction in the operating room. Dr. Grouper presented a case study of multifaceted failure in the OR. Counsel to the State Bar of Georgia, Paula Frederick, discussed legal ethics and social media. The program was closed through a presentation by Dr. Richard Shure, who discussed sports medicine and orthopedic injuries.

Given the half day format of the program, many of the conference attendees were able to take in a play. My son, my wife and I snuck off Saturday afternoon to see "To Kill a Mockingbird". This nine time Tony award-winning play features Jeff Daniels (Atticus Finch) in Aaron Sorkin's adaptation of the famous book. I highly recommend the play to anyone-especially those of us in the legal profession with a sense of justice.

So, as I began, it's a wrap! In the, "you spoke and we listened" category, the ABPLA Board discussed new dates for next year's Seminar. We understand that May is a busy month for graduations and other events. Accordingly, as we begin planning next year's conference, and its location, we will also examine new dates. If you were unable to attend this year's conference due to a conflict, please drop me a note letting me know your ideas on dates as well as locations for next year's conference. All suggestions will be considered.

Lastly, we need stronger input from our defense brethren and sisters. If you would like to speak at next year's conference, please shoot me an e-mail. I will make sure your name gets to the conference planning committee. Talk to you next month!