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. 67, No. 4, October

Abuse of Power: Disregarding Traditional Legal Principles to Invalidate Tort Reform
Do you have to have an injury before you can challenge the constitutionality of legislation? Not if it's tort reform in Missouri or Ohio TORT REFORM is or has been on the agenda of most state legislatures in the United States. When legislation is...
Abuse of Power: Disregarding Traditional Legal Principles to Invalidate Tort Reform
Do you have to have an injury before you can challenge the constitutionality of legislation? Not if it's tort reform in Missouri or Ohio TORT REFORM is or has been on the agenda of most state legislatures in the United States. When legislation is enacted,...
Amount-in-Controversy: Not Too Late to Aggregate
Writing in the May issue of the newsletter of the Class Actions and Multiparty Litigation Committee, Thomas J. Foley and Ellen C. Padesky of Detroit's Kitch Drutchas Wagner DeNardis & Valitutti discuss aggregation: Recent federal decisions have addressed...
Appealing Class Certification: Traps for the Unwary
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...
Bad Faith and Sureties: Recent Developments
Writing in the May issue of the newsletter of the Fidelity and Surely Committee, Gary A. Wilson and Wayne J. Marotelli of Philadelphia's Duane, Morris & Heckscher look at the issue of whether bonds are insurance: The California Supreme Court's opinion...
Certification Doesn't Depend on Merit or Amount of Claims
In acting on a motion to certify a suit as a class action, courts should not consider whether the cause of action lacks merit or whether the potential monetary recovery is de minimus, the California Supreme Court ruled in Linder v. Thrifty Oil Co., 2...
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...
Current Decisions
CIVIL PROCEDURE Discovery Doesn't Include Order for IQ Examination In a case alleging lead-paint injuries to an infant plaintiff, New York courts have refused to compel the mother to submit to an IQ examination during pretrial discovery. Andon...
Defense News
Judicial Conference Nixes Cameras in Courtrooms A bill in the U.S. Senate to allow cameras in federal courtrooms under certain conditions could "seriously jeopardize" the rights of citizens to a fair trial, the U.S. Judicial Conference has stated...
Ethically Representing Thousands of Plaintiffs: Conflict Problems in Mass Toxic Harm Cases
Multiple representation should be allowed when it is beneficial to do so, but new measures should be implemented to protect against abuses. IN SOME mass toxic harms cases, such as those involving diethylstilbestrol (DES) or the Dalkon shield, lawyers...
Everyone Wants to Get a Little Tobacco Money
California stands to receive about $25 billion over 25 years from the major tobacco companies as a result of the master settlement agreement reached with 46 states and six territories in 1998. So everyone wants to get in the act. It occurred to Louis...
Expanded Grounds for Judicial Review of Employment Arbitration Awards
If the arbitration process is not reformed, courts may start to vacate awards on both fact and law grounds, thus impairing the advantages of non-litigation EXPRESSING frustration with outdated and narrow grounds for vacatur, in 1998 the Second Circuit...
Ghost of Pennzoil-Texaco: Hidden Risks of Arguing Alternative Damages
Should the defense sponsor alternative damage numbers? There's no one answer because it depends on the strength of the defense case IMAGINE this: The plaintiff's case has been presented to the jury, and the defense is under way. The defense trial...
Illegal Contract Still a "Business Transaction"
A California citizen, James Adler, and his controlled Mexican corporation, El Surtidor del Hogar, were taken in and then participated in a scam conceived by various Nigerian individuals and at least one Nigerian government official. When Adler and El...
Insured's Bad Faith Can't Trump Insurer's Bad Faith
With one justice dissenting and two concurring separately, the California Supreme Court concluded that a liability insurer cannot assert the insured's "comparative bad faith" (the court's quotation marks) in a bad faith action against it for breach of...
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...
Judges and Law Clerks Should Prevent Impropriety
Consider this scenario. Law firm Murphy, Weir & Butler represented First Interstate Bank of Arizona and Talley Real Estate Finance Co., secured creditors, in the Chapter 11 bankruptcy of Scottsdale Pinnacle Associates. Although not known by the partner...
Judicial Conference Nixes Cameras in Courtrooms
A bill in the U.S. Senate to allow cameras in federal courtrooms under certain conditions could "seriously jeopardize" the rights of citizens to a fair trial, the U.S. Judicial Conference has stated to a Senate subcommittee. Chief Judge Edward E. Becker...
Legal Practice in Australia: From MDPs to Incorporation
Organizational norms of the 18th century are giving way to those of the 21st as incorporated law firms are about to emerge in New South Wales DURING the 1990s, the legal profession in Australia underwent considerable change. In New South Wales,...
Litigation Conduct as Evidence of Bad Faith
Writing in the May issue of the newsletter of the Advocacy, Practice and Procedure Committee, Joan Fullam Irick of Kightlinger & Gray, Indianapolis, notes a disturbing trend: Insurance carriers and those who defend them have come to accept the tort...
New U.S. Tort Litigation: To Go Warily Where No One Has Gone Before
Courts now are being used by plaintiffs' counsel to change industry-wide practices, to enforce self-regulation and to extract large punitive damage awards IN YEARS GONE by, the purpose of tort litigation was to compensate deserving plaintiffs. That...
Oil Tanker Shipping, No; Secondhand Smoke, Yes
U.S. federal statutes and regulations relating to the maritime industry preempt state's attempts to regulate oil tanker shipping, at least as to operations that extend beyond the state's own waters, the U.S. Supreme Court held in United States v. Locke,...
Opposing Discounted Cash Flow Analysis
Writing in the May issue of the newsletter of the Business Litigation Committee, James D. Nelson of Betts, Patterson & Mines, Seattle, advises doing your own homework: Legal doctrines like Daubert's requirement that an expert's analysis be reliable...
President's Page
Stand Up and Be Counted IF YOU'LL forgive the use of an old legal phrase, the contingency fee lawyers (don't call them "trial lawyers") are kicking our collective butts in the political and legislative arenas, all to the detriment of defense bar...
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," "Casenote," etc. are as listed in the publication, with...
Stand Up and Be Counted
President's Page IF YOU'LL forgive the use of an old legal phrase, the contingency fee lawyers (don't call them "trial lawyers") are kicking our collective butts in the political and legislative arenas, all to the detriment of defense bar and our clients....
The Interstate Practice of Law: Are You Crossing the Line?
California's Birbrower decision has focused attention on the ability of lawyers to furnish legal services outside their state of admission IT IS a commonplace that business and the economy are increasingly becoming global in structure, with little...
Tripartite Relationship Triumphs in California
The California Court of Appeal, Second District, has reaffirmed that state's adherence to the tripartite relationship in which defense counsel retained and paid by an insurer has two clients-the insurer and the insured-with the result that the insurer...
Use of Human Epidemiology Studies in Proving Causation
Epidemiology studies can be used to establish only general causation, but there are many criteria that can be employed to test those studies EPIDEMIOLOGY studies examine populations--generally smaller subsets or samples of populations--in an attempt...
U.S. Postal Service Statement of Ownership, Management and Circulation (Required by 39 U.S.C. 3685)
1. Publication title: Defense Counsel Journal. 2. Publication number: 0895-0016. 3. Filing date: October 1, 1998.4. Issue frequency: Quarterly (January, April, July, October). 5. Number of issues published annually: four. 6. Annual subscription price:...
What One Hand Giveth, the Other Taketh Away
Proving that courts can change their minds, the Eighth Circuit has held that its own rule on the precedential status of unpublished opinions is unconstitutional under the judicial article of the U.S. Constitution because "it purports to confer on federal...
"Wrongful Birth" Is Just Plain Malpractice
Call it "wrongful birth" if you want to, but to the Indiana Supreme Court, it's just a claim for medical malpractice. That's the court's decision in Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000), in which parents sued a physician and genetic counseling...