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. 68, No. 4, October

Attorney Liability under ERISA: Myth or Reality?
Lawyers may not be "fiduciaries," but that won't help them escape non-fiduciary exposure, particularly as forecast by a recent decision IN THIS new millennium, lawyers retained to perform services for a plan governed by the Employee Retirement Income...
Attorney Liability under ERISA: Myth or Reality? Lawyers May Not Be "Fiduciaries," but That Won't Help Them Escape Non-Fiduciary Exposure, Particularly as Forecast by a Recent Decision
IN THIS new millennium, lawyers retained to perform services for a plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. [section] 1001 et seq., face the usual exposures from a client for professional errors. Lawyers...
Attorney Trumps Client in Fee Dispute
A jury awarded a client $250,000 in a successful employment discrimination suit against the California Highway Patrol, and the court ultimately awarded almost a million dollars in attorney's fees and expenses. Since there was no definitive fee agreement...
Attorney Trumps Client in Fee Dispute
Current Decisions A jury awarded a client $250,000 in a successful employment discrimination suit against the California Highway Patrol, and the court ultimately awarded almost a million dollars in attorney's fees and expenses. Since there was no definitive...
"But For" and "Case within the Case" Weakening
Writing in the April newsletter of the Professional Errors and Omissions Committee, George W. Spellmire and Denise A. Johnson of D'Ancona & Pflaum, Chicago, discuss the changes in the legal malpractice landscape: Traditionally, the "case within...
"But For" and "Case within the Case" Weakening
"But for" and "Case Within the Case" Weakening Writing in the April newsletter of the Professional Errors and Omissions Committee, George W. Spellmire and Denise A. Johnson of D'Ancona & Pflaum, Chicago, discuss the changes in the legal malpractice...
California Anti-SLAPP Statute Defeats Drug Class Actions
Writing in the August issue of the newsletter of the Drug, Device and Biotech Committee, James A. O'Neal and Amy R. Freestone of the Minneapolis office of Faegre & Benson, tell the story of dismissal: Considerable publicity has been generated...
California Anti-SLAPP Statute Defeats Drug Class Actions
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...
Defending against Contribution Actions: Using the UCATA Bar to Advantage
Although jurisdictions vary, contribution can be escaped if parties seeking it acted "intentionally," "willfully" or "wantonly." But who was the actor? MOST jurisdictions in the United States provide for some form of contribution among tortfeasors. Contribution...
Defending against Contribution Actions: Using the UCATA Bar to Advantage: Although Jurisdictions Vary, Contribution Can Be Escaped If Parties Seeking It Acted "Intentionally," "Willfully" or "Wantonly." but Who Was the Actor?
MOST jurisdictions in the United States provide for some form of contribution among tortfeasors. Contribution claims, be they third-party claims or separate actions for contribution, are based on the premise that the contribution plaintiff is entitled...
Exercising Subrogation Rights against Subcontractors Isn't Easy, but It's Not Impossible
Careful attention to the issues presented by policy language, additional insured language and subrogation clauses is important THE QUESTION whether a builders' risk insurer can exercise subrogation rights against subcontractors and material suppliers...
Exercising Subrogation Rights against Subcontractors Isn't Easy, but It's Not Impossible: Careful Attention to the Issues Presented by Policy Language, Additional Insured Language and Subrogation Clauses Is Important
THE QUESTION whether a builders' risk insurer can exercise subrogation rights against subcontractors and material suppliers whose negligence or faulty products have caused damage is an oft-litigated subject. There are a lot of cases, (1) but this article...
Gramm-Leach-Bliley Act Riles U.S. Lawyers
The application of Title V of the Gramm-Leach Bliley Act, enacted by the 106th Congress, to the legal profession continues to concern the U.S. legal profession. As of last July 1, a section of the act (15 U.S.C. [section] 6802), as implemented by...
Gramm-Leach-Bliley Act Riles U.S. Lawyers
The application of Title V of the Gramm-Leach Bliley Act, enacted by the 106th Congress, to the legal profession continues to concern the U.S. legal profession. As of last July 1, a section of the act (15 U.S.C. sec 6802), as implemented by regulations...
Growing Recognition of Wrongful Death for Unborn Children
Writing in the August issue of the newsletter of the Advocacy, Practice and Procedure, James M. Simpson Jr. of Eldredge & Clark, Little Rock, discusses the increasing numbers of courts and legislatures recognizing actions for wrongful death of...
Growing Recognition of Wrongful Death for Unborn Children
Writing in the August issue of the newsletter of the Advocacy, Practice and Procedure, James M. Simpson Jr. of Eldredge & Clark, Little Rock, discusses the increasing numbers of courts and legislatures recognizing actions for wrongful death of unborn...
Holler Bad Faith and Privileges Disappear
Splitting 4-3, the Ohio Supreme Court held that when a plaintiff alleges bad faith against an insurer, neither the attorney-client privilege nor the work product doctrine will protect documents in the insurer's claims file prepared before the denial...
Holler Bad Faith and Privileges Disappear
CIVIL PROCEDURE Splitting 4-3, the Ohio Supreme Court held that when a plaintiff alleges bad faith against an insurer, neither the attorney-client privilege nor the work product doctrine will protect documents in the insurer's claims file prepared before...
Identifying and Protecting Employers' Interests in Trade Secrets and Proprietary Information
Every company has something that it hopes will give it an edge over the competition, and it's wise to protect this as a trade secret TO BE successful, companies must distinguish themselves in a marketplace saturated with consumer products and services....
Identifying and Protecting Employers' Interests in Trade Secrets and Proprietary Information: Every Company Has Something That It Hopes Will Give It an Edge over the Competition, and It's Wise to Protect This as a Trade Secret
TO BE successful, companies must distinguish themselves in a marketplace saturated with consumer products and services. To do so, they must cultivate and maintain a client base and recruit, train and retain a skilled work force. They must do all this...
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...
Judicial Conference "Recommits" Computer Monitoring Proposal
A proposal that would have stripped "judicial branch employees," apparently including judges, from an expectation of privacy when they use the judiciary's data communications network has been shelved --or "recommitted," in the words of the Director...
Judicial Conference "Recommits" Computer Monitoring Proposal
A proposal that would have stripped "judicial branch employees," apparently including judges, from an expectation of privacy when they use the judiciary's data communications network has been shelved -or "recommitted," in the words of the Director of...
Lawyers and Bioethics: Balancing Being Lawyers and Conferring with Medical Ethics Advisors
There may be some reasons why lawyers shouldn't participate in medical ethics discussions, but with some common sense, they could be valuable WITH INCREASING frequency health law lawyers are asked to participate in discussions that intertwine legal,...
Lawyers and Bioethics: Balancing Being Lawyers and Conferring with Medical Ethics Advisors: There May Be Some Reasons Why Lawyers Shouldn't Participate in Medical Ethics Discussions, but with Some Common Sense, They Could Be Valuable
WITH INCREASING frequency health law lawyers are asked to participate in discussions that intertwine legal, clinical and medical-ethical concerns. These "bioethical" issues are related to, but distinct from, purely legal questions. For example,...
Liability for Direct-to-Consumer Advertising and Drug Information on the Internet
While the learned intermediary doctrine still lives, drug manufacturers can take some precautionary measures if it is ruled inapplicable Our medical-legal jurisprudence is based on images of health care that no longer exist. -New Jersey Supreme Court...
Liability for Direct-to-Consumer Advertising and Drug Information on the Internet: While the Learned Intermediary Doctrine Still Lives, Drug Manufacturers Can Take Some Precautionary Measures If It Is Ruled Inapplicable
Our medical-legal jurisprudence is based on images of health care that no longer exist. --New Jersey Supreme Court in Perez v. Wyeth Laboratories Inc., 734 A.2d 1245, 1246 (1999). THE INTERNET and the growing system of managed health care present...
Massachusetts Lawyer Invades Rhode Island Unsuccessfully
Illustrating the issues in extra-jurisdictional practice and pro hac vice rules, the Rhode Island Supreme Court granted pro hac vice status to a Massachusetts lawyer but refused to pre-date the status to legitimate services already performed. In re...
Massachusetts Lawyer Invades Rhode Island Unsuccessfully
Illustrating the issues in extra-jurisdictional practice and pro hac vice rules, the Rhode Island Supreme Court granted pro hac vice status to a Massachusetts lawyer but refused to pre-date the status to legitimate services already performed. In re Ferrey,...
Medical Monitoring: Pay Me Now or Pay Me Later
Writing in the July newsletter of the Toxic and Hazardous Substances Committee, Laurie Bloom, Susan Roney and Joseph Leghorn (assisted by Andrew M. Burns and John W. Weinholtz), all of Nixon Peabody, LLP, Buffalo, survey the medical monitoring scene:...
Medical Monitoring: Pay Me Now or Pay Me Later
Writing in the July newsletter of the Toxic and Hazardous Substances Committee, Laurie Bloom, Susan Roney and Joseph Leghorn (assisted by Andrew M. Burns and John W. Weinholtz), all of Nixon Peabody, LLP, Buffalo, survey the medical monitoring scene:...
Money and Judicial Elections
We must never forget that the only real source of power that we as judges can tap is the respect of the people. -- Justice Thurgood Marshall IN THE last 20 years, there has been growing apprehension in the United States about the manner in which...
Multi-Party Actions
Multi-party Actions. By Christopher Hodges. Oxford University Press, Great Clarendon St., Oxford OX2 6DP, England. 2001. L95.00 in the United Kingdom and European Union; $165.00 in the United States. Pages xlii, 564. (Review edited and reprinted from...
No Medical Monitoring If It Won't Bo Any Good
TORTS Seamen who alleged exposure to asbestos but had no asbestos-related illness failed to convince the Ninth Circuit that they were entitled to medical monitoring in In re Marine Asbestos Cases (Bravo v. American Hawaii Cruises Inc.), 2001 WL 1028293...
No Medical Monitoring If It Won't Do Any Good
Seamen who alleged exposure to asbestos but had no asbestos-related illness failed to convince the Ninth Circuit that they were entitled to medical monitoring in In re Marine Asbestos Cases (Bravo v. American Hawaii Cruises Inc.), 2001 WL 1028293 (September...
No State Action for Lack of Propeller Guard
Agreeing with a number of lower federal courts, the Illinois Supreme Court held that federal law impliedly pre-empts state common law tort actions based on manufacturers' failure to install propeller guards on boats. Sprietsma v. Mercury Marine Division...
No State Action for Lack of Propeller Guard
FEDERAL PRE-EMPTION Agreeing with a number of lower federal courts, the Illinois Supreme Court held that federal law impliedly pre-empts state common law tort actions based on manufacturers' failure to install propeller guards on boats. Sprietsma v....
President's Page: Money and Judicial Elections
We must never forget that the only real source of power that we as judges can tap is the respect of the people. - Justice Thurgood Marshall IN THE last 20 years, there has been growing apprehension in the United States about the manner in which the election...
Sands in an Hourglass: Solving the Puzzle of Time Limits for Removal to Federal Court
28 U.S.C. (sec) 1446(b) is most unhelpful when multiple defendants seek removal, but the Supreme Court's Murphy Brothers decision points the way to a rule WHILE plaintiffs have the initial choice of where to bring an action, in the federal system of...
Sands in an Hourglass: Solving the Puzzle of Time Limits for Removal to Federal Court: 28 U.S.C. Section 1446(b) Is Most Unhelpful When Multiple Defendants Seek Removal, but the Supreme Court's Murphy Brothers Decision Points the Way to a Rule
WHILE plaintiffs have the initial choice of where to bring an action, in the federal system of the United States, Congress has given defendants a statutory right of removal of civil actions to federal court under 28 U.S.C. [section] 1446 for actions...
Securities Case Costs Sanctions for Two Firms
The Second Circuit had a procedural tangle to work out before affirming sanctions against two law firms as a result of a class action in which they participated. Corroon v. Reeve, 258 F.3d 86 (2001). The lead firm was Schoengold & Sporn, which...
Securities Case Costs Sanctions for Two Firms
The Second Circuit had a procedural tangle to work out before affirming sanctions against two law firms as a result of a class action in which they participated. Corroon v. Reeve, 258 F.3d 86 (2001). The lead firm was Schoengold & Sporn, which filed...
Successful Partnership between Inside and outside Counsel
Successful Partnership Between Inside and Outside Counsel. Edited by Robert L. Haig. West Group, 620 Opperman Drive, P.O. Box 64833, St. Paul, MN 55164-9777 (to order: 1-800-344-5009). Four looseleaf volumes and two disks, 6,032 pages. Updated annually....
Unraveling the Unicover Mess - and More to Come
Writing in the June newsletter of the Reinsurance Committee, Adam C. Barker of the London office of Sedgwick, Detert, Moran & Arnold, looks at the unfinished state of the Unicover "mess": Unicover was virtually unknown in 1996. Four years later...
Unraveling the Unicover Mess-And More to Come
Writing in the June newsletter of the Reinsurance Committee, Adam C. Barker of the London office of Sedgwick, Detert, Moran & Arnold, looks at the unfinished state of the Unicover "mess": Unicover was virtually unknown in 1996. Four years later it...
Use of F Word out of Court Can't Support Sanctions
Sorting out a slip-and-fall and attorney sanctions case from the Virgin Islands, the Third Circuit has handed defeat to the client and victory to her attorney. Saldana v. K Mart, 260 F.3d 228 (2001). Marie Saldana's slip-and-fall suit against K...
Use of F Word out of Court Can't Support Sanctions
SANCTIONS Sorting out a slip-and-fall and attorney sanctions case from the Virgin Islands, the Third Circuit has handed defeat to the client and victory to her attorney. Saldana v. KMart, 260 F.3d 228 (2001). Marie Saldana's slip-and-fall suit against...
Using Joint Defense Privilege Agreements in Parallel Civil and Criminal Proceedings
There are pluses and minuses to joint defense agreements, but the pluses might outweigh the minuses if the agreements are carefully drafted MANY situations that involve parallel proceedings also entail multiple respondents, targets or defendants. Cooperation...
Using Joint Defense Privilege Agreements in Parallel Civil and Criminal Proceedings: There Are Pluses and Minuses to Joint Defense Agreements, but the Pluses Might Outweigh the Minuses If the Agreements Are Carefully Drafted
MANY situations that involve parallel proceedings also entail multiple respondents, targets or defendants. Cooperation among them can be an essential component in mounting a successful defense to parallel proceedings, but cooperation and sharing of...