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. 79, No. 2, April

A Legal Guessing Game: Does U.S. Common Law Require Manufacturers and Suppliers of Consumer Products to Warn in Languages Other Than English?
OVER the last 30 years, the United States has become increasingly diverse. (1) In turn, this increased cultural variety--much due to immigration--has coincided with a rise in the number of households that speak primary languages other than English....
A New Approach to Cross-Border Discovery: The Sedona Conference's International Principles
This article originally appeared in the February 2012 International Committee Newsletter. Of all issues in modern litigation, discovery of electronically stored information (ESI) remains one of momentous and ever-growing significance. Collection,...
A New Argument Supporting Removal of Diversity Cases Prior to Service
PLAINTIFFS AND DEFENDANTS in complex litigation have always battled over the forum in which a case will be tried, with plaintiffs generally preferring state courts and defendants generally preferring federal courts. When complete diversity exists among...
Defending Marcellus Shale Groundwater Contamination Claims: The Case against Class Actions and Other Theories of Liability
RECENT ADVANCES in drilling and hydraulic fracturing techniques have led to dramatic increases in the accessibility of the Marcellus Shale natural gas reserve. Although the benefits of Marcellus Shale production are numerous, increased drilling activity...
Defending Marcellus Shale Groundwater Contamination Claims: The Case against Class Actions and Other Theories of Liability
RECENT ADVANCES in drilling and hydraulic fracturing techniques have led to dramatic increases in the accessibility of the Marcellus Shale natural gas reserve. Although the benefits of Marcellus Shale production are numerous, increased drilling activity...
IADC Tenets of Professionalism
The International Association of Defense Counsel is aware that applicable rules or codes of professional responsibility generally provide only minimum standards of acceptable conduct. Since we aspire to the highest ideals of professionalism, we hereby...
IADC Tenets of Professionalism
The International Association of Defense Counsel is aware that applicable rules or codes of professional responsibility generally provide only minimum standards of acceptable conduct. Since we aspire to the highest ideals of professionalism, we hereby...
Manning the Daubert Gate: A Defense Primer in Response to Milward V. Acuity Specialty Products
ON JANUARY 9, 2012, the United States Supreme Court denied certiorari in Milward v. Acuity Specialty Prods. Group, Inc. (1) and, in so doing, let stand a First Circuit holding that a plaintiff expert's medical causation opinion resting solely on a...
Money Talks: Exposing Bias Using Expert Witness Fee Arrangements
This article originally appeared in the January 2012 Products' Liability Committee Newsletter. Expert witnesses play a more critical role than ever in the outcome of product liability litigation. Indeed, in many jurisdictions a sustainable opinion...
New Healthcare Lien Recovery Theories by Third-Party Payors: Strategies and Tactics for the Defense
MOST ATTORNEYS remember the "good ole days" when health care liens on recoveries were simple and generally speaking, the "plaintiff attorneys' problem" since no funds were ever paid until plaintiff's counsel had settled the lien. And while this traditional...
The Admissibility of Graphics and Presentations as Demonstrative Aids in Canadian Court Proceedings
This article originally appeared in the April 2012 Trial Techniques and Tactics Committee Newsletter. We are often asked by our international colleagues and clients what use, if any, can be made of computer graphics and presentations as demonstrative...
The Enhanced Injury Doctrine: How the Theory of Liability Is Addressed in a Comparative Fault World
IN CERTAIN motor vehicle accidents, there may be several potentially negligent actors, as well as several contributing causes to the injury of the plaintiff. The plaintiff himself may have been negligent, and this negligence could have contributed...
The Obligation of Good Faith and the Doctrine of "Necessary Implication": Does This Have Relevance to the Contracts Entered into by Sureties?
This article originally appeared in the March 2012 Fidelity and Surety Committee Newsletter. About 35 years ago, I tried a case in "blizzard conditions" in Evansville, Indiana for eleven weeks. It was a multi-party case with an owner, contractor,...
The Obligation of Good Faith and the Doctrine of "Necessary Implication": Does This Have Relevance to the Contracts Entered into by Sureties?
This article originally appeared in the March 2012 Fidelity and Surety Committee Newsletter.About 35 years ago, I tried a case in "blizzard conditions" in Evansville, Indiana for eleven weeks. It was a multi-party case with an owner, contractor, surety...
The Presidential Elbow
About 3 weeks ago, I slipped while attempting a "run" on a (rather good) temporary cricket pitch at Rancho Las Palmas at the IADC Midyear Meeting. As a result I sustained a badly broken humerus which has required surgery. In English terms, I have suffered...