Defense Counsel Journal

This publication provides topical and scholarly writings on the law, including its development and reform and the practice of law in the civil defense and insurance fields.

Articles from Vol. 66, No. 3, July

Actual Innocence Needed for Criminal Malpractice
LEGAL MALPRACTICE Actual Innocence Needed for Criminal Malpractice Actual innocence is a necessary element of a cause of action for legal malpractice when a former criminal defendant sues his defense attorney, the California Supreme Court decided in...
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Airline Deregulation Act Doesn't Preempt All Suits
FEDERAL PREEMPTION Airline Deregulation Act Doesn't Preempt All Suits The Ninth Circuit consolidated five passenger injury cases against airlines in order to hold that the Airline Deregulation Act of 1978 does not shield airlines from state tort law...
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Annual Survey of Fidelity and Surety Law, 1998 -- Part II
This roundup of recent cases covers public and private construction bonds, fidelity and financial institution bonds, and sureties' remedies I. PUBLIC CONSTRUCTION BONDS A. Bonds under Federal Laws 1. Substantive Subcontractor entitled to...
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Annual Survey of Fidelity and Surety Law, 1998-Part II
This roundup of recent cases covers public and private construction bonds, fidelity and financial institution bonds, and sureties, remedies The annual survey of fidelity and surety, law is a project of the IADC Fidelity), and Surety Committee and is...
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An Opportunity for Mass Tort Reform
The proliferation of mass tort litigation has placed a significant strain on our judicial system as well as our nation's business community. In what is sometimes called entrepreneurial litigation, plaintiffs' attorneys represent thousands, or millions,...
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At-Will Employees Get Enhanced Protection from Termination
Writing in the January issue of the newsletter of Employment Law Committee, Jill Gradwohl Schroeder describes the broadening of the rights of at-will employees who act as whistle-blowers: In what was labeled in a Chicago Tribune article as a "decisive...
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Business and Commercial Litigation in Federal Courts
Business and Commercial Litigation in Federal Courts. Robert L. Haig, Editor-in-chief. American Bar Association and West Group. 1998. To order, call 1800-328-9352. Six volumes. 6,435 pages. $480,15 percent discount to ABA members. Reviewed by Michael...
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Chinese Walls Must Be Institutionalized
The House of Lords sent a shot across the bow of multidisciplinary practices in Prince Jefri Bolkiah v. KPMG, [1999] 1 All E.R. 517, when the law lords held that an ad hoc Chinese wall wasn't enough, that it "needs to be an established part of the organizational...
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Common Reinsurance Issues: Follow the Fortunes, Late Notice and Rescission
Law is evolving in each of these areas, while courts seek to balance cedents' expectations with reinsurers' contract rights THERE are three legal issues that are common to many reinsurance disputes--follow the fortunes, late notice, and rescission....
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Conning the IADC Newsletters
Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents...
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Current Decisions
DAMAGES Limits on Punitive Damages May Be Enforced by Courts Federal courts have authority derived from the U.S. Constitution to reduce punitive damages awards to constitutional scope without plaintiffs' concurrence or the offer of a new trial,...
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End Run on Legal Malpractice Doesn't Require Privity
End Run on Legal Malpractice Doesn't Require Privity If a jurisdiction requires privity-that is, an attorney-client relationship-for a legal malpractice action, and there is no privity, don't worry if you're a Texas plaintiff. All you have to do change...
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Expert Medical Testimony: Is There an Answer to "Not Only Relevant, but Reliable"?
Conflicting expert testimony on causation is too complex for judges or juries, and a new model of court-appointed experts and physician discipline is needed THE American Medical Association has determined that physicians are considered to be practicing...
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FDA Lacks Authority to Regulate Tobacco
FDA Lacks Authority to Regulate Tobacco In a case invaded by 37 states and numerous associations as amici curiae, the Fourth Circuit ruled that the U.S. Food and Drug Administration lacks the authority it claims under the Food, Drug and Cosmetic Act...
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Food Safety Recalls: There's a Right Way
Food Safety Recalls: There's a Right Way Writing in the February issue of the Product Liability Committee newsletter, James A. O'Neal of Faegre & Benson, Minneapolis, looked at the food recall picture: There have been at least four major food product...
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From the Horse's Mouth: The Workings of the Judicial Panel on Multidistrict Litigation
Cases involving common questions of fact are assigned to one district court for pretrial proceedings, but under Lexecon they can't be tried there TODAY'S Judicial Panel on Multidistrict Litigation consists of seven district judges designated by...
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How to Defend Punitive Damages Claims Effectively-And Maybe Successfully
Punitive damages cases present difficult challenges to defense counsel, but attention to a lot of details may produce success If a man steals an ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and four sheep for a sheep....
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Insurers Can't Escape the Grasp of RICO
Insurers Can't Escape the Grasp of RICO Writing in the March issue of the newsletter of the Casualty Insurance Committee, Kristen E. Crisp and Timothy J. Muldowney of LaFollette Sinykin, Madison, Wisconsin, discuss the implications of a case holding...
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International Association of Defense Counsel Tenets of Professionalism
1. We will conduct ourselves before the court in a manner which demonstrates respect for the law and preserves the decorum and integrity of the judicial process. 2. We recognize that professional courtesy is consistent with zealous advocacy. We...
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Judicial Comity and Resolving Business Disputes
Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents...
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Learning the New Rules of Sexual Harassment: Faragher, Ellerth and Beyond
Employers may be hard put to comply with all the standards raised, but employees also may find it difficult to overcome some barriers Last year in two cases decided the same day--Faragher v. City of Boca Raton(1) and Burlington Industries Inc. v....
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Limits on Punitive Damages May Be Enforced by Courts
DAMAGES Limits on Punitive Damages May Be Enforced by Courts Federal courts have authority derived from the U.S. Constitution to reduce punitive damages awards to constitutional scope without plaintiffs' concurrence or the offer of a new trial, the I...
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National Jury Trial Innovations Project: An Update One Year Later
In 1998, the Foundation of the International Association of Defense Counsel launched the National Jury Trial Innovations Project. The IADC Institute was created by the foundation to sponsor, develop and coordinate the project nationally. When we described...
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Practicing Double Has Its Perils
Practicing Double Has Its Perils If lawyers do something that isn't "lawyers' work," they can't invoke the attorney-client or work product privileges, the Seventh Circuit instructed in United States v. Frederick,1999 WL 222947. Challenging a summons...
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Reviewing the Law Reviews
This is a selective bibliography of current law review literature of interest to defense counsel. Main articles are identified by naming the author or authors. The designations "Note," "Comment," "Case Note," etc. are as listed in the publication,...
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Student Sexual Harassment Problem for Boards, Officials
SCHOOLS Student Sexual Harassment Problem for Boards, Officials School boards and officials may be liable under Title IX of the Education Amendments of 1972 for student-on-student harassment, the U.S. Supreme Court held in Davis v. Monroe County Board...
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The Book Shelf
Business and Commercial Litigation in Federal Courts. Robert L. Haig, Editor-in-chief. American Bar Association and West Group. 1998. To order, call 1-800-328-9352. Six volumes. 6,435 pages. $480, 15 percent discount to ABA members. Reviewed by Michael...
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The Joint Defense Privilege and Its Ethical Implications
Courts recognize the privilege, but the major issues relate to its extent, particularly when a settling defendant reveals confidential information All for one, one for all, that is our device. --Alexander Dumas, The Three Musketeers There...
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Wholesale Changes to the English Civil Justice System Go into Effect
From the defence perspective, the effect of the Woolf reforms is to move the pendulum significantly toward plaintiffs A wholly new set of procedural rules governing civil actions in England went into effect on 26 April 1999. Intentionally or otherwise,...
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Working Relationships between In-House and Firm Lawyers
Working Relationships Between In-house and Firm Lawyers Writing in the March issue of the newsletter of the Corporate Counsel Committee, James M. Wood, a partner in the Oakland, California, office of Crosby, Hea fey, Roach & May, and F. Samuel Eberts...
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