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. 70, No. 4, October

Be a Defense Lawyer: Help Your Clients Minimize Losses
Help Your Clients Minimize Losses In keeping with the limits on a carrier's contractual authority to hire an agent for a policyholder, a defense lawyer's job is to defend a policyholder against the claims asserted in a complaint. This is the only...
Chapter 1: Frequently Asked Questions
This chapter contains focused answers to questions defense lawyers often encounter when faced with problems that challenge their professional responsibilities. Each answer also cites the section(s) of this guide where relevant issues are discussed at...
Chapter III: Be a Defense Lawyer: Stick to Your Last
Help Your Clients Minimize LossesIn keeping with the limits on a carrier's contractual authority to hire an agent for a policyholder, a defense lawyer's job is to defend a policyholder against the claims asserted in a complaint. This is the only job...
Chapter II: Start out Right
Identify Your Client or ClientsWhom does an insurance defense lawyer represent? In the simplest case, where there is but one policyholder and one insurer, the possibilities are three: only the policyholder, only the insurance carrier, or both the policyholder...
Chapter IV: Loyalty
Loyalty and Clienthood Go TogetherA defense lawyer owes a client complete and unqualified loyalty but has no duty of loyalty to a non-client. This means that:* A lawyer who represents only an insured owes no duty of loyalty to a carrier.* A lawyer who...
Chapter IX: Special Problems
Handling an Uncooperative InsuredIn the discussion of the scope of a defense lawyer's retention in Chapter II, it was emphasized that defense lawyers are not engaged to handle coverage issues and should steer clear of them. The danger of becoming involved...
Chapter VI: Exercise Independent Judgment
Be a Lawyer In keeping with the view that lawyers are first and foremost advisors, every lawyer owes every client a duty to exercise independent professional judgment for the client's benefit. This is true both in third-party payer situations and...
Chapter VI: Exercise Independent Judgment
Be a LawyerIn keeping with the view that lawyers are first and foremost advisors, every lawyer owes every client a duty to exercise independent professional judgment for the client's benefit. This is true both in third-party payer situations and when...
Chapter VIII: Settlement Issues
A Defense Lawyer Need Not Handle Settlement Issues Today, most liability carriers reserve control of settlement to their claims professionals, at least initially. This is their right and also is efficient. It would be ridiculously expensive and...
Chapter VIII: Settlement Issues
A Defense Lawyer Need Not Handle Settlement IssuesToday, most liability carriers reserve control of settlement to their claims professionals, at least initially. This is their right and also is efficient. It would be ridiculously expensive and essentially...
Chapter VII: The Duty to Give Information and the Duty of Confidentiality
Open Communication with Both Clients Is the Rule in Tripartite Relationships Insurers control the defense, investigation and settlement of claims. To exercise that control effectively, they need accurate and complete information about the merits...
Chapter VII: The Duty to Give Information and the Duty of Confidentiality
Open Communication with Both Clients Is the Rule in Tripartite RelationshipsInsurers control the defense, investigation and settlement of claims. To exercise that control effectively, they need accurate and complete information about the merits of claims...
Chapter V: Obedience
In GeneralA client has the right to tell a lawyer how to handle a matter. Except in very unusual situations, a lawyer may not disregard a direct instruction from a client, even if the instruction is one the client previously agreed not to give. When...
Chapter XI: Appendix of Forms
Initial Disclosure Letter for Full Coverage Representations Privileged and Confidential Attorney-Client Communication Dear Policyholder: [NAME OF INSURANCE COMPANY] ("the insurance company") has retained me as defense counsel in [CAPTION OF...
Extraterritoriality and Punitive Damages: Is There a Workable System?
The U.S. Supreme should speak more definitively on the extent to which conduct in other instances and net worth may be used against defendantsOVER THE last decade, there has been a marked shift in the manner in which American courts award punitive damages....
Extraterritoriality and Punitive Damages: Is There a Workable System? the U.S. Supreme Should Speak More Definitively on the Extent to Which Conduct in Other Instances and Net Worth May Be Used against Defendants
OVER THE last decade, there has been a marked shift in the manner in which American courts award punitive damages. While it remains a goal of the judicial system to maintain the two-fold purpose of punitive damages--punishment of the offending party...
Fear of Future Cancer Part of Pain and Suffering
Writing in the March newsletter of the Toxic and Hazardous Substances Litigation Committee, Ronald E. Bailey of the Portland, Oregon, office of Bullivant Houser Bailey discusses a recent U.S. Supreme Court decision: In a 5-4 opinion on March l0...
Frequently Asked Questions
This chapter contains focused answers to questions defense lawyers often encounter when faced with problems that challenge their professional responsibilities. Each answer also cites the section(s) of this guide where relevant issues are discussed...
Ghosbusting Prejudicial Evidence: No Haunting the Manufacturer
Writing in the March newsletter of the Drug, Device and Biotech Committee, Ralph Streza and Carmen Morris Twyman of the Cleveland office of Porter Wright Morris & Arthur, LLP, discuss preventing former statements:It's a cold, blustery March day,...
Ghostbusting Prejudicial Evidence: No Haunting the Manufacturer
Writing in the March newsletter of the Drug, Device and Biotech Committee, Ralph Streza and Carmen Morris Twyman of the Cleveland office of Porter Wright Morris & Arthur, LLP, discuss preventing former statements: It's a cold, blustery March...
How Much Is an Ounce of Prevention Worth?
Writing in the May newsletter of the Class Actions and Multi-party Litigation Committee newsletter, David J. Vendler of the Los Angeles office of Morris, Polich, Purdy writes about a split in California courts: In response to burgeoning litigation...
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...
Law Firm In-House Attorney-Client Privilege Vis-a-Vis Current Clients
Courts should reconsider and limit the rule that in-house communications are not protected against current clientsCOURTS now recognize that a law firm may consult its own lawyers, as inhouse counsel, and have the benefit of the attorney-client privilege...
Law Firm In-House Attorney-Client Privilege Vis-a-Vis Current Clients: Courts Should Reconsider and Limit the Rule That In-House Communications Are Not Protected against Current Clients
COURTS now recognize that a law firm may consult its own lawyers, as in-house counsel, and have the benefit of the attorney-client privilege for those communications. (1) But several cases have held that this privilege does not apply against a party...
Lost Punitive Damages as Compensatory Loss
Writing in the November newsletter of the Legal Malpractice Committee, Samuel W. Outten and Lane Davis of Leatherwood Walker Todd & Mann, P.C., Greenville, South Carolina, discuss a thorny issue: When a lawyer's malpractice causes a plaintiff...
Loyalty and Clienthood Go Together
Loyalty and Clienthood Go Together A defense lawyer owes a client complete and unqualified loyalty but has no duty of loyalty to a non-client. This means that: * A lawyer who represents only an insured owes no duty of loyalty to a carrier. ...
Obedience
In General A client has the right to tell a lawyer how to handle a matter. Except in very unusual situations, a lawyer may not disregard a direct instruction from a client, even if the instruction is one the client previously agreed not to give....
Partial Bibliography
Selected Writings by the Reporters Ellen Smith Pryor The Tort Law Debate, Efficiency, and the Kingdom of the Ill: A Critique of the Insurance Theory of Compensation, 79 VA. L. REV. 91 (1993). Comparative Fault and Insurance Bad Faith, 72 TEX....
Preface and Acknowledgments
This guide is the final product of a project, begun in 1993, to examine in depth the professional responsibilities of insurance defense lawyers. The brainchild of David J. Beck, who was President of the International Association of Defense Counsel...
Qui Tam and the False Claims Act: Criminal Punishment in Civil Disguise
The qui tam provisions of the FCA are a serious threat to American industry, and they are subject to constitutional challenges on several groundsSINCE the 1986 revisions to the federal False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, the U.S. Department...
Qui Tam and the False Claims Act: Criminal Punishment in Civil Disguise: The Qui Tam Provisions of the FCA Are a Serious Threat to American Industry, and They Are Subject to Constitutional Challenges on Several Grounds
SINCE the 1986 revisions to the federal False Claims Act (FCA), 31 U.S.C. [subsections] 3729-3733, the U.S. Department of Justice reports that more than $10 billion ha been awarded in civil verdicts under the act, and the pace is quickening. Just recently,...
Special Problems: Handling an Uncooperative Insured
Handling an Uncooperative Insured In the discussion of the scope of a defense lawyer's retention in Chapter II, it was emphasized that defense lawyers are not engaged to handle coverage issues and should steer clear of them. The danger of becoming...
Start out Right: Identify Your Client or Clients
Identify Your Client or Clients Whom does an insurance defense lawyer represent? In the simplest case, where there is but one policyholder and one insurer, the possibilities are three: only the policyholder, only the insurance carrier, or both the...
The Case for a Preservation Safe Harbor in Requests for E-Discovery
Despite the courts' increased attention to dragnet requests for production of electronic materials, the scope of preservation should be addressedIN THE April 2001 issue of this journal, I discussed the need for rational standards to govern the production...
The Case for a Preservation Safe Harbor in Requests for E-Discovery: Despite the Courts' Increased Attention to Dragnet Requests for Production of Electronic Materials, the Scope of Preservation Should Be Addressed
IN THE April 2001 issue of this journal, discussed the need for rational standard to govern the production of electronic materials in discovery and advocated adoption of amendments to the Federal Rules o Civil Procedure. (1) In large measure, that...
The Puzzle of Defining "Bodily Injury" under the Warsaw Convention
Laxity of courts in requiring an objective, palpable bodily injury will lead to a flood of insignificant claims for hurt feelingsIN ACTIONS involving international transportation by aircraft, the rights of the parties are governed exclusively by a treaty...
The Puzzle of Defining "Bodily Injury" under the Warsaw Convention: Laxity of Courts in Requiring an Objective, Palpable Bodily Injury Will Lead to a Flood of Insignificant Claims for Hurt Feelings
IN ACTIONS involving international transportation by aircraft, the rights of the parties are governed exclusively by a treaty known as the Warsaw Convention, (1) which was promulgated in 1929 and ratified by the United States Senate in 1934. At present,...
The Rebirth of the IADC
THE International Association of Defense Counsel is celebrating its 83rd year, and the Executive Committee has undertaken a strategic analysis of the association, refocusing and redefining the purpose of the association to propel us into the 21st century....
The U.S. Supreme Court and Punitive Damages: On the Road to Reform
After years of developing its jurisprudence, the Supreme Court in State Farm signals that the days of runaway, irrational punitive damages may be endingLAST APRIL, the U.S. Supreme Court issued what may be the most important punitive damage ruling ever...
The U.S. Supreme Court and Punitive Damages: On the Road to Reform: After Years of Developing Its Jurisprudence, the Supreme Court in State Farm Signals That the Days of Runaway, Irrational Punitive Damages May Be Ending
LAST APRIL, the U.S. Supreme Court issued what may be the most important punitive damage ruling ever to come from that Court--State Farm Mutual Automobile Insurance Co. v. Campbell. (1) First, the Court set a single-digit multiplier as the ordinary...
U.S. Postal Service Statement of Ownership, Management and Circulation
1. Publication title: Defense Counsel Journal. 2. Publication number: 0895-0016. 3. Filing date: October 1, 2003.4. Issue frequency: Quarterly (January, April, July, October). 5. Number of issues published annually: four. 6. Annual subscription price:...
When Insurers Go Belly Up: Implications for Insurers, Policyholders and Guaranty Funds
It's not only the insured who suffers when there is an insurer insolvency; the ripples may cause damage to several other parties as wellRELIANCE, Frontier, Eegion, Phico and now Home.Not since the late 1980s has the insurance industry seen such a dramatic...
When Insurers Go Belly Up: Implications for Insurers, Policyholders and Guaranty Funds: It's Not Only the Insured Who Suffers When There Is an Insurer Insolvency; the Ripples May Cause Damage to Several Other Parties as Well
RELIANCE, Frontier, Legion, Phico and now Home. Not since the late 1980s has the insurance industry seen such a dramatic series of financial calamities. The recent insolvencies of major commercial insurance companies such as Home and Reliance...