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. 65, No. 4, October

Application of Daubert Is a Puzzle
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...
A Time for Jury Innovation
IN RECENT YEARS, the jury trial has come under increasing scrutiny from a number of directions. Newspaper editors, television commentators and corporate leaders have questioned the process. The American public hears reports of unusual verdicts or inconsistent...
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
CLASS ACTIONS Former Major Leaguers Fail to Reach First Base Seymour (Cy) Block played in 17 games for the Chicago Cubs from 1942 to 1946, plus one game in the 1945 World Series. For his career, he batted .302 and struck out three times. Make...
Defense News
U.S. Chief Justices Float Professionalism Proposals The U.S. Conference of Chief Justices has adopted a National Action Plan on Lawyer Conduct and Professionalism, which it has published seeking public comment. The conference will consider the comments...
Disclaimers, Explanations Don't Help This HMO
Employing the doctrine of apparent authority, the First Distract Appellate Court of Illinois held that an independent practice model health maintenance organization could be vicariously liable for the negligent failure to diagnose of the independent...
Ethical Implications for Defense Counsel When Insurers Seek Reimbursement
Defense attorneys will become the prime source of proof in insurers' actions to recover defense costs, and therein lie the ethical pitfalls In July 1997, the Supreme Court of California decided Buss v. Superior Court (Transamerica Insurance Co.),(1)...
Former Major Leaguers Fail to Reach First Base
Seymour (Cy) Block played in 17 games for the Chicago Cubs from 1942 to 1946, plus one game in the 1945 World Series. For his career, he batted .302 and struck out three times. Make that four, courtesy of the California Court of Appeal, First District....
HMOs and Bad Faith: A New Danger
HMOs and Bad Faith: A New Danger Writing the June newsletter of the Casualty Insurance Committee, Timothy J. Muldowney and Todd G. Smith of Madison's LaFollette & Sinykin analyze a new Wisconsin decision and its consequences Conflicts of interests...
Issues Management in the Global Economy: Creating and Managing Documents
The documentary record is important, particularly for products manufacturers, but care must be taken that policies are in place and pitfalls are avoided IT IS vitally important to the proper development of a product to encourage an open exchange...
Issues Management in the Global Economy: Moving beyond Being Just Multinational
The development of use of knowledge throughout a corporate enterprise is the way of the future and the route to its becoming a good world citizen "GLOBALIZATION is where the market is going. They've seen the trend, and they've gone along with it."...
Is Titan Indemnity-Triborough Bridge an Aberration or Sign of the Times?
Unfortunately, the Second Circuit's opinion could dissuade sureties from choosing to complete a project after a contractor's contended default IN A RECENT decision of the U.S. Court of Appeals for the Second Circuit, Titan Indemnity Co. v. Triborough...
Mass Tort Class Actions: Will Amchem Spawn Creative Solutions?
Settlement class actions as known in the past probably are dead, and courts must now look for other ways to handle mass torts than under Rule 23 LAST YEAR the U.S. Supreme decided Amchem Products Inc. v. Windsor,(1) a case that could signal the...
No Cause of Action for Rules Violation
The Supreme Court of New Jersey refused to recognize a new cause of action for civil liability against an adversary's attorney premised on the attorney's breach of the applicable Rules of Professional Conduct. Baxt v. Liloia, 714 A.2d 271 (1998). The...
No Class Action Because of Individual Issues
In Small v. Lorillard Tobacco Co., 1998 WL 398176, July 16, the New York Appellate Division, First Department, reversed the trial court and decertified two huge class actions against five major cigarette manufacturers. (See 668 N.Y.S.2d 307 (Sup.Ct....
Of Legal Audits and Legal Ethics
There's no definitive answer to the issues raised by insurers' use of outside legal auditors, but it's a sore point with the defense bar that needs solutions LIABILITY insurers are under considerable economic pressure. It began building in the early...
President's Page
IN RECENT YEARS, the jury trial has come under increasing scrutiny from a number of directions. Newspaper editors, television commentators and corporate leaders have questioned the process. The American public hears reports of unusual verdicts or inconsistent...
Reform of Civil Litigation in England and Wales
England and Wales is in the midst of a sequence of significant civil litigation and legal aid reforms, which were announced in October 1997 by Lord Irvine of Lairg, the Lord Chancellor (in effect the minister of justice), who came into office with the...
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,...
Some Suggestions on Admitting Computer Graphics into Evidence at Trial
Computer-generated visual evidence is likely to be compelling, so meeting the objections to its admissions is important IF A videotape is the "the next best thing to being there," then a computerized graphic of an event is even better than being...
State Alternate Provider Statute Escapes Preemption
Who needs Congress to repeal ERISA's federal preemption provision when the courts can do it quicker. The federal Employee Retirement Income Security Act does not preempt Washington state's so-called alternate provider statute, which requires health maintenance...
Surprise Video Nixes Plantiff's Judgment
A repetitive stress injuries plaintiff lost a $293,385 award because her attorney suddenly came up with a last-minute videotape. Rotolo v. Digital Equipment Corp., 150 F.3d 223 (2d Cir. 1998). The plaintiff, Jeanette Rotolo, used a computer manufactured...
Switching Sides: May a Lawyer Ever Represent Someone against a Former Client?
Let us have faith that right makes might; and in that faith let us to the end, dare to do our duty as we understand it. --ABRAHAM LINCOLN CONSIDER this scenario. The CEO of a major corporation wants to retain your firm in a $500 million lawsuit...
Timing and Settlement Considerations When Recoupment Is Sought in Buss Cases
There are factors that both hinder and strengthen the timing and settlement moves when insurers seek to recoup defense costs in mixed coverage cases WHILE decisions such as the California Supreme Court's ruling in Buss v. Superior Court (Transamerica...
U.S. Chief Justices Float Professionalism Proposals
The U.S. Conference of Chief Justices has adopted a National Action Plan on Lawyer Conduct and Professionalism, which it has published seeking public comment. The conference will consider the comments and may take action on the plan at its midyear meeting...
U.S. Judicial Conference Circulates Proposals to Amend Civil and Evidence Rules
Public comment period opens for proposed amendments that deal with discovery reform and nail down the meaning of the Daubert decision THE U.S. Judicial Conference in August circulated proposed amendments to Federal Rules of Civil Procedure and the...
U.S. Judicial Conference Circulates Proposals to Amend Civil and Evidence Rules
Public comment period opens for proposed amendments that deal with discovery reform and nail down the meaning of the Daubert decision THE U.S. Judicial Conference in August circulated proposed amendments to Federal Rules of Civil Procedure and the Federal...
Who's the "Client"? Why, the Insured
Writing in the August newsletter of the Professional Errors and Omissions Committee, Glenn W. Jones and G. Spence Fricke of Barber, McCaskill, Jones & Hale of Little Rock survey the current law and find that he who pays doesn't always call the tune:...