The Voice^TM

• Business Development: Build your book of business of attorney referrals and make lasting connections with your colleagues at networking events. 

• Professional Development: Earn CLE hours attending sessions on hot topics. 

• Personal Development: Hear keynote speakers including award-winning author Connie Podesta; Chief Judge of the United States Court of Appeals for the Sixth Circuit Jeffrey S. Sutton; and National Political Correspondent for NPR and Fox News Correspondent, Mara Liasson.  
  
  So, what are you waiting for? Registration is now open! Secure your spot today for early bird rates for the meeting of the year for civil defense attorneys and in-house counsel! 

Well-being is a significant part of your success as an attorney. The DRI for Life’s Committee’s charge from the DRI Foundation is to support its members to lead healthy, balanced and productive lives through wellness activities, support programs and mentoring. Coinciding with May being Mental Health Awareness month and that May 1-5 is National Lawyer Well-being Week, this article highlights the Committee’s goals for expanding wellness offerings and information, encouraging law firms to allow for healthy lifestyles and eliminating the stigma associated for those seeking help.

A personally impactful wellness presentation at the 2019 Washington Defense Trial Lawyers Annual Meeting on “The Hazards of Practicing Law” led to more than one “aha” moment for me. Like most in the audience, I had read and heard statistics on the elevated rates of stress, substance abuse, addiction, depression and suicide affecting attorneys relative to the general population. What was eye-opening about this presentation was information provided on some of the “whys” specific to trial attorneys.

As trial attorneys we are continuously rewarded for spinning facts favorable to our client’s position while doing our best to minimize bad facts. Our relentless questioning of the opposing side’s story, negative interpretations and judgmental approach to cases often rewards us with a silver bullet that may win the day or significantly reduce the value of a case. But no attorney is able to achieve perceived wins on every case, so this roller coaster ride of a profession often leads to feeling like a hero one moment and a zero the next. The positive reinforcement of our spin doctoring and not wanting to appear vulnerable to opposing counsel can predictably bleed over into our personal lives. We end up not sharing our own bad facts with friends, colleagues and loved ones when we are struggling, and we do not seek help given the stigma of such behaviors. Hearing the “whys” in the presentation made me think “well that explains a lot” in recognizing the need to be much more authentic with those that are close to me and to not automatically presume someone’s ill-intent.

Not long after hearing this wellness presentation, I was appointed to the DRI for Life Committee, and I often come back to the power of understanding root causes for these elevated rates of mental health issues impacting attorneys. This year as Chair of the DRI for Life Committee, we are focusing on the following objectives:

DRI for Life Guidelines for Programming and Activities. The Committee fosters and promotes DRI for Life events that focus on health and well-being at the DRI Annual Meeting and our seminars. The Committee has drafted a planning guide and timeline for DRI for Life activities and programs that will be added to the Substantive Law Committee Toolkit. Note that healthy living, wellness, life balance and mental health programming may meet State’s ethics, substance abuse awareness, mental health and wellness CLE requirements. The Committee is also working to expand the DRI Speaker List to include more DRI members to present on wellness topics.

Webinars. As part of National Lawyer Well-Being Week on May 2 at noon CT, DRI for Life Committee Co-Chair Ricardo Woods will be moderating a webinar on “Warning Signs v. Well-Being: How law firms are effectively focusing on wellness.” In this Town Hall format, we will be discussing how impactful leaders in the legal industry have mental health, physical well-being and overall wellness on their minds. With the alarming rates of depression, anxiety and substance abuse, our legal organizations cannot afford to overlook these key issues if they want to maintain healthy and productive teams. In a post-pandemic workplace proactively addressing these issues is an essential component to maximizing productivity, retention and organizational sustainability. This program will focus on providing lawyers, law firm leaders and the people invested in the well-being of their organizations with a framework to help recognize, manage and prioritize the wellness of the people who make up the organization. This webinar is FREE to all DRI members and we encourage setting up a watch party at your firm.

Also, as part of your registration for any DRI seminar in 2023, you have access to the FREE on-demand program “Lessons for Lawyers from the Science of Well Being.” This presentation from Emma Ross and Shayna Cook of Goldman Ismail Tomaselli Brennan & Baum LLP focuses on the practical steps that attorneys can take as individuals to improve well-being, drawing on recent research from cognitive science and beginning with the preface that happiness can be learned and applied. Specifically, they will provide an evidence-based arsenal of practical tools that lawyers can apply in their own lives to improve well-being.

Publications and Resources. Committee members will continue to submit wellness articles to The Voice and we are soliciting writings from our DRI members. DRI has a Substance Abuse and Mental Health Resource Center website page and further promotes wellness on our social media platforms. Additionally, all states have lawyer mental health assistance programs and law firms are urged to distribute this resource.

Promoting National Lawyer Well-Being Week. There will be daily campaigns focusing on:
Monday, 5/01: Stay Strong (Physical)
Tuesday, 5/02: Align (Spiritual)
Wednesday, 5/03: Engage & Grow (Career & Intellectual)
Thursday, 5/04: Connect (Social)
Friday, 5/05: Feel Well (Emotional)

A supportive work environment is critical to well-being as it is associated with lower rates of burnout, anxiety, and depression and greater satisfaction with life. So consider having your law firm planning its own activities and programs during the Lawyer Well-Being Week. Reported successes from past years include: firmwide sharing of a well-being article or Ted talk and discussing strategies for maintaining a healthy mind and body; distributing a firm-specific coloring page, brain teaser, or word search and awarding gift cards for participants; organizing walking/standing meetings, mindfulness and mediation exercises; and connecting in-person or by video with someone you haven’t spoken with recently or thanking someone who has made your life a little better. And be sure to share your Lawyer Well-Being activities on social media!  

Sadly, studies continue to identify an alarming gap between lawyers who self-report suffering from mental health and/or substance abuse issues and those who actually seek care. Such stigma barriers include loss of dignity, embarrassment, injury to pride, not acknowledging their own need for care, or family, friends or colleagues finding out. See, Lawyer Well-/Being in Massachusetts Final Report, 2-01-2023. The DRI Foundation through the DRI for Life Committee endeavors to offer wellness programs, activities, webinars and resources for facilitating change in the legal industry, promoting self-care and reducing stigma that will hopefully lead to your own “aha” moments in your wellness journey. 

Lori O'Tool is a partner with Preg O’Donnell & Gillett. She is the DRI for Life Chair.

On March 27, the U.S. Supreme Court granted certiorari in Acheson Hotels, LLC v. Laufer, in alignment with the DRI Center for Law and Public Policy’s brief, which supported of the petition, arguing that the First Circuit incorrectly applied U.S. Supreme Court precedent. The brief was quoted in an article published on Law360.com. The Center plans to join the Atlantic Legal Foundation’s brief on the merits, to be filed in late spring. 

This good result followed another from the Supreme Court of New Hampshire in Brown, et al. v. Saint-Gobain Performance Plastics. The court’s opinion, issued March 21, also aligns with the amicus brief that was filed by The Center and joined by the Tri-State Defense Lawyers Association and the Washington Legal Foundation, calling for the rejection of claims for medical monitoring absent present physical injury.

Congratulations to The Center’s brief authors Sarah Elizabeth Spencer (Christensen & Jensen) and Mary Massaron (Plunkett Cooney)—both members of The Center’s Amicus Committee—for their work on Acheson Hotels, LLC and Brown, et al., respectively.

Pictured, L to R: Spencer, Massaron

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If you are reading this publication, you are likely a lawyer and thus aware of this fact: We live in a very litigious society. Another fact: lawyers are (at least for now) human, and thus capable of making mistakes.  Putting these truths together means—rest assured—that if a lawyer does something wrong in the course of representing a client, chances are that lawyer is going to be sued for it.  And there are so many little things that can create liability for attorneys and their firms. Not communicating properly with your client can lead to misunderstood expectations. A deadline might be missed. You could make a typo in a document. These things happen. These things reveal a need. That need: professional liability insurance.  Insurance is the rare product that people buy in hopes of never having to use it, but if you want to use it—or more importantly if you need to use it—you first need to make sure it’s there for you.  

What Does Professional Liability Insurance Do for You?  

Well, first and foremost it lets you sleep at night because you know you’ve got coverage.  It is also going to save you and your firm a lot of money in the course of defending a lawsuit.  Even if a firm didn’t do anything wrong, if they are sued, there could be significant defense costs. That’s where professional liability insurance comes into play. (And remember: It not only protects the lawyer and firm, but also the client, in the form of paying any indemnities that come due as a result of a claim.) 

What to Look for in a Professional Liability Carrier? 

The need for insurance should be evident.  So, what are the important characteristics to be mindful of when selecting a carrier?  

Admitted vs. Nonadmitted Carriers 

Purchasing insurance from an admitted carrier—one that has filed a rate plan and policy form with, has been approved by, and must remain in compliance with, the state’s insurance department—is one important consideration. One of the critical advantages of selecting an admitted carrier is that admitted carriers must contribute to the state’s guaranty fund, which protects insureds of an admitted carrier should, for whatever reason, that carrier go bankrupt.  Further, the state regulates how much admitted carriers charge and what coverages they can offer.  Buying insurance from a nonadmitted carrier leaves an insured without those assurances.  Nonadmitted carriers can charge whatever they want and provide whatever coverages they want—and if they go bankrupt, well, you are likely out of luck. 

Experience 

Another trait of an attractive carrier is experience.  There are some carriers that simply don’t have the expertise to understand how to underwrite properly or price properly, and that may be a pretty good indicator that the carrier may not be around very long.  What good is buying coverage from someone who’s not going to be there when you need them?  Look for a carrier with longevity and stability in the marketplace. One of the best indicators of a carrier that will be there when you need them is someone who’s been around for a long time and is well established.   

Coverage 

Because attractive (admitted) carriers create their own policy forms and their own sets of coverages that are approved by the state, there can be differences in the products offered.  You want to make sure to understand the coverage and make sure that you get not only the broadest coverage possible, but more importantly, coverage that meets your needs.  Consider what is important to you from a coverage perspective, and ask whether the policy form that you’re looking at will provide those coverages?  

Another very important aspect that firms will want to look for in carriers is whether they provide viable opportunities for tail coverage (aka: Extended Reporting Period coverage).  Policies are written on a claims-made basis: the policy that’s in force when the claim is made is the one that will provide coverage. If something happened five years ago but the firm only reports a potential liability today, the policy in force today covers it.  But if the firm stops getting insurance (e.g., dissolves) and three years later there’s a claim to be made, there’s nothing to cover that claim. The ability to buy a tail covers attorneys for future claims that haven’t been reported yet.  Some carriers may only offer five-year tails, preferring to avoid unlimited tails because they never get to close their books.  Ideally, you want a carrier that offers unlimited tail coverage. It’s a very attractive selling point for a worthwhile carrier.    

A Word on Claim Representatives… 

As stated earlier, nobody wants to use their professional liability policy.  But once you do, are you going to be in good hands? Are you with a carrier that has an experienced, reputable claim department to handle your claims?  Ideally, claim reps should be seasoned, experienced, attorneys who know how to handle attorney claims. 

A Word on Agents… 

Most carriers will require that a firm obtain an insurance agent act to as an intermediary and represent their needs. A worthwhile carrier will want a firm or an attorney to be represented by an authorized agent who the carrier also has an agreement with. A carrier may appoint an agent who they know to be not only experienced and capable, but also specialized.  A firm should want someone with a thorough understanding of lawyers’ professional liability.  That agent will know which markets to contact, which carriers will have an appetite to underwrite a specific firm, and to get the best deal for the firm. It should be clear, however, that the agent represents the firm/lawyer, not the carrier.    

Risk Management 

Risk management is another thing that firms should look for when trying to find the best carrier.  Most carriers will offer some type of risk management services free of charge to any policyholder. For example, a carrier may work with a law firm that specializes in lawyers’ professional liability, so a key component of a good risk management program might include access to a hotline with an allotment of free time to consult with experts.  Do you need help putting together an engagement letter? Advice on record retention?  Or do you think you may have screwed up?  A carrier’s hotline should allow you to pick up the phone for a privileged consultation with a senior risk management attorney: tell them what happened and learn what to do next.  

A good risk management program will also have a robust website with easy access to a curated library of resources, including forms, checklists, articles, state rules and ethics opinions, and more to help protect you and your firm from ever-present—and ever increasing—risk.  Other added value may come in the form of free hours of CLE and access to webinars and newsletters on hot topics.  

A Final Word – For the Defense 

If you are reading this publication, you are likely a not only a lawyer, but a civil defense lawyer. Does the carrier you’re considering specialize in providing coverage for defense firms? It can be an important and financially beneficial question to ask.  Where the defense firm area of practice is a preferred area of practice, some carriers will offer additional coverages and additional credits for defense firms. 

Sleep well.  


Kevin J. Sullivan is President & CEO of LawyerGuard. He has over 35 years of professional liability underwriting and management experience. Prior to joining LawyerGuard in 2016, Kevin was an Assistant Vice President with Hartford Financial Products, managing various underwriting groups including Lawyers E&O, Miscellaneous E&O and Cyber. Additionally, Kevin served as Vice President of the Hanover Insurance Group’s Lawyers and Accountants E&O underwriting teams. Kevin spent the first 26 years of his career with Travelers and their predecessor companies (including St. Paul and Gulf), focusing on professional liability (including lawyers, accountants, real estate agents, and medical malpractice). Kevin received a BA in Mathematics from Massachusetts College of Liberal Arts (formerly known as North Adams State College). In addition, he holds the designations CPCU (Chartered Property Casualty Underwriter) and RPLU (Registered Professional Liability Underwriter).  

Social Inflation Task Force
Several DRI members have been added to the Center’s team that is responsible for studying factors influencing the rise in the size of jury verdicts above expected levels and for recommending steps to limit that rise. Newly appointed to the Social Inflation Task Force are Tracee Allen (NAMIC Insurance Co. Inc.), Jeffrey Ditmar (Atain Insurance), Eric Passeggio (Sulloway & Hollis PLLC), Juan Marquez (Rodey Law Firm), and Clare Maisano (Evert Weathersby Houff).

Pictured, L to R: Allen, Ditmar, Passeggio, Marquez, Maisano

State Legislation and Rules Task Force
The Center’s newest task force continues to grow, adding representation from two more jurisdictions.  Francine M. Giugno (Kelly Kroninberg) and Taylor Brett (Adams & Reese) now cover Louisiana, with Nicole Marklein (Cross Jenks Mercer & Maffei LLP) taking the oar in Wisconsin. The task force provides support by assisting, upon request, SLDOs that are interested in evaluating, supporting, or opposing potential legislation or rules affecting their members and clients and helps SLDOs evaluate legislation or rules adopted in other jurisdictions.  With representation in twelve states (CO, LA, MD, NJ, NY, PA, OH, OK, RI, TX, WV, and WI), the task force is looking for members from other jurisdictions to join the effort.  To learn more, email TheCenter@dri.org. 

The task force also created a new, online intake form that SLDO leaders may use to submit requests for assistance or action from The Center. 

Pictured, L to R: Giugno, Brett, Marklein 

AI Working Group
The Center’s Artificial Intelligence Working Group has been recharged by the recent appointments of Kevin McCarthy (Larson King) as chair, and Brett Tarver (Troutman Pepper) as vice chair.  If you are interested in learning more or joining the working group, email TheCenter@dri.org.

Pictured, L to R: McCarthy, Tarver

Nonlawyer Ownership of Law Firms Task Force
The Nonlawyer Ownership of Law Firms Task Force (formerly Economics of Law) recently put on a webinar, Nonlawyer Investment in the Legal Economy, as a follow up to the publication last year of the white paper of the same name. This webinar, now available to members via DRI’s on-demand library, outlines the major regulatory changes in several U.S. states that now permit nonlawyers to own law firms.  A faculty that includes task force chair Marta-Ann Schnabel (O’Bryon & Schnabel) and task force members Susan Gunter (Dutton Brock) and Tom Hurney (Jackson Kelly) explain the evolution from the "practice of law" by attorneys to the provision of "legal services" by nonlawyers, how this relaxation permits increased connection between corporations and alternative legal services providers, and how even litigators should prepare for these internet-based changes. Registration is only $75.00 for DRI members. 

Pictured, L to R: Schnabel, Gunter, Hurney

MSP Task Force
The Center’s MSP Task Force also recently held an MSP 101 webinar, which addresses Medicare Secondary Payer fundamentals that every claim professional and defense attorney should know.  In this course, attendees learn the history of the MSP Act, how to recognize when MSP is implicated, and basic compliance obligations of insurance companies and self-insureds as "Responsible Reporting Entities" under the MSP Act 1395y and corresponding CFR sections for reporting to CMS and protecting the Medicare Fund.  If you need to refresh your knowledge of all things MSP, this is the right place to start.  Speakers for this webinar, which will be replayed on Tuesday, April 18, 2023, from 11:00 a.m. to 12:29 p.m. CDT, include MSP Task Force members John Cattie (Cattie and Gonzalez) and Bruce Cranner (Talley Anthony Hughes & Knight). 

Pictured, L to R: Cattie, Cranner

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While a bit of stress may seem relatively harmless, left unchecked, it can have long-term negative impacts on your health. Making sure you’re taking care of your body and mind will not only positively impact your health; it can also help increase your productivity and drive at work. By working to recognize the symptoms of stress, you can help manage it, as well as your overall mental and physical health.  

According to MayoClinic, some common signs of stress include: 

On your Body                                      
Headache                                                         
Muscle Tension or pain                               
Chest pain                           
Change in sex drive                 
Sleep problems

On your Mood 
Anxiety           
Restlessness
Lack of motivation or focus     
Sadness or depression      

On your Behavior   
Overeating or undereating    
Angry outbursts        
Tobacco use
Exercising less often

If you notice one or more of these symptoms, you’ll want to begin taking steps to manage your stress. Some ways you can do that include: 

• Taking a deep breath when you feel overwhelmed 

• Getting regular exercise 

• Setting aside time to focus on yourself 

• Giving your mind a break from your work 

• Spending time with friends and family 

By introducing one or more of these strategies when you’re starting to feel stressed, you can minimize your stress overtime and begin building positive habits to help you reclaim your physical and mental health. 

You can also attend The DRI for Life Committee’s Town Hall Webinar, Warning Signs v. Well-Being: How Law Firms are Effectively Focusing on Wellness, on Tuesday, May 2nd at 12:00 PM. This webinar will focus on providing lawyers, law firm leaders and the people invested in the well-being of their organizations with a framework to help recognize, manage and prioritize the wellness of the people who make up the organization. Register now!

In order to attract new clients, stay ahead of competitors, and elevate your law firm’s brand, it’s essential to have a marketing plan in place. There are many ways to get noticed by your goal audience. Leverage social media, networking events, and more to expand your law firm’s reach as part of a greater marketing strategy. 

Check out our new post on Court & Counsel: The DRI Blog to learn more!

Court & Counsel: The DRI Blog – Your premier resource for civil defense content.

Employment and Labor Law Committee
Gordon Hill, Chair

DRI's Employment and Labor Law Committee is a vibrant, active committee that provides education, shared expertise, professional development and networking in this ever-changing area of the law. The big issues in our practice area are changes that are underway at the federal regulatory level. For example, the Federal Trade Commission recently proposed to ban all non-compete agreements. In February, the National Labor Relations Board ruled that an employer commits an unfair labor practice by merely offering severance to an employee with an agreement containing certain kinds of confidentiality and non-disparagement provisions. The Department of Labor is also getting ready to publish proposed overtime regulations.

With all of these developments, our committee members are proactive in sharing with each other best practices for clients. Our committee members are active Community users, and both formally and informally share ideas and information with each other that is invaluable.

The Employment and Labor Law Seminar is May 3-5 in New Orleans. We have a blockbuster DEI session to start the seminar called “How Company Culture Shapes Labor & Employment Initiatives and Legal HR Compliance,” which will touch on a number of issues. The session features an in-house attorney from a large fortune 50 company as well as the former General Counsel of the Arizona Diamondbacks. We are also excited about the networking opportunities, and we always look forward to our Year in Review session with Al Latham.

In addition to our seminar, our committee has been active in producing online content for DRI. In January, we had a webinar featuring the renowned constitutional scholar Erwin Chemerinsky reviewing the latest Supreme Court term and previewing what’s to come. In February, we held our second annual Labor Law boot camp – an extended webinar focused on a unique specialty area that we cannot adequately cover during our seminar. Finally, we are planning on a similar boot camp covering OSHA later this year.

Our members support each other, refer business to each other, and generally truly enjoy each other’s company. We have a lot of virtual fun on the Community, and in-person fun at seminars. Join us! 

Want to get involved?

• Join the Employment and Labor Law Committee. The ELL online community is an active and vibrant group that provides you with an outstanding resource.

• Register for the Employment and Labor Law Seminar in New Orleans. There are great opportunities to meet new people and get involved with the committee.

• Ready to get involved? Reach out to Committee Chair Gordon Hill at gordon.hill@hwhlaw.com or Vice Chair Helen Holden at hholden@spencerfane.com for more information.

Kirk Sanchez v. TA Operating Nevada LLC, et al., No. A-19-807349-C (February 28, 2023).

Michael Correnti and Philip Kegler of McDonald Toole Wiggins PA in Orlando, Florida, won a summary judgment dismissal with prejudice for TA Operating LLC d/b/a TravelCenters of America in a suit brought by Plaintiff Kirk Sanchez who was driving a motorcycle when he was involved in a crash on Dean Martin Drive, a public roadway that is adjacent to TA’s trucking facility in Las Vegas, Nevada. Plaintiff claimed that an unidentified semi-truck was exiting TA’s property and struck his motorcycle because of alleged vision obstructions and lack of signage on TA’s property near the exit way. Mr. Sanchez sustained a right leg amputation as a result of the accident. TA disputed Plaintiff’s description of the accident, particularly as there was no evidence to corroborate his testimony that a semi-truck was leaving TA’s property, struck his motorcycle, and then fled the scene. To the contrary, TA’s accident reconstruction showed that Plaintiff’s accident occurred because he lost control of his motorcycle and struck a parked semi-truck on the side of the road. Nonetheless, for purposes of summary judgment, even accepting Plaintiff’s testimony as true, TA successfully argued that summary judgment was appropriate because: (1) TA did not owe a legal duty to Plaintiff who was not on TA’s property and operating a motorcycle on a public roadway; and (2) Plaintiff failed to come forward with any evidence to support his theory that hazardous conditions on TA’s property caused or contributed to this incident. As such, a jury would only be left to purely speculate.

On February 28, 2023, the Honorable Adriana Escobar for the Eighth Judicial District Court in Clark County, Nevada granted final summary judgment in favor of TA and dismissed Plaintiff’s lawsuit with prejudice. In granting summary judgment, the Court’s Order stated “the Court finds there is no evidence that the lack of stop sign, yield sign, or stop line caused or contributed to this specific accident. The Court finds it is undisputed that this alleged semi-truck driver was never identified. The Court finds it is undisputed that there is no eyewitness testimony explaining whether this unidentified driver ever existed, or what this unidentified driver did or did not do while on TA’s property. Plaintiff’s liability expert, Mr. Avrit, admits there is no code or regulation that requires a private owner to place a stop sign at the exit of their property.” The Court further stated “[w]ithout any evidence, Plaintiff argues that the addition of a stop sign would have prevented this incident and that the vision obstruction to the truck driver caused or contributed to the accident. A jury cannot make this determination without purely speculating which they are not permitted to do.” Notably, Plaintiff also brought claims against Clark County which were dismissed when Clark County’s summary judgment was granted because of the applicable qualified immunity and discretionary function immunity.

The case is Kirk Sanchez v. TA Operating Nevada LLC, et al., No. A-19-807349-C (February 28, 2023).

Pictured, L to R: Correnti, Kegler

Arnett Law Group Defends NJ Chemical Company

For nearly three weeks, Daniel J. Arnett of Arnett Law Group, LLC, and his trial team defended a New Jersey chemical company in a product liability action pending in St. Louis City Court. The product involved was “diacetyl,” a product commonly found in nature but also created synthetically via manufacturing processes. The claims that went to the jury were those of strict liability design defect and failure to warn. The alleged injuries were inhalation injuries. Sales were from 2003 – 2006, no evidence of direct exposure, injuries contested. Despite two plaintiffs at trial, counsels’ focus was on getting punitive damages as to the client, the only remaining diacetyl supplier in the case. Evidence of the employer’s knowledge of the risks purportedly associated with the use of diacetyl were barred, as was the presentation and/or discussion of any other suppliers’ warnings. Seventeen years had passed since either plaintiff could possibly have been exposed to the diacetyl at issue.

Plaintiffs’ jury demand after closing arguments was $100 million ($50m/plaintiff), plus punitive damages. After contesting liability (no evidence of failure to warn, no evidence of design defect, no evidence of exposure to our client’s product), the team decided to use the increasingly popular “anchoring” theory that has been discussed at length at DRI Seminars and other bar organizations over the last few years. Mr. Arnett suggested $700,000/plaintiff, or $1.4 million, and no punitive damages (also addressed at length during the closing).

The jury came back with a verdict after deliberating for over 6 ½ hours, finding for the plaintiffs and against the defendant, $1 million/plaintiff ($2 million total), no punitives, a mere $600,000 more than the team suggested. In addition, the $2 million is to be reduced by settlement setoffs to a number not much larger than what was tossed around during pre-trial settlement discussions. The final settlement demand prior to trial was $27 million. As far as the team was concerned, the primary “win” was the jury’s finding of “no punitives,” but reducing compensatory damages from $100 million to $2 million felt pretty good as well.

Arnett

Segal McCambridge Prevails with a Complete Defense Verdict in the U.S. District Court for the Southern District of Texas

Segal McCambridge Shareholders Joseph Kish, Paul Motz, and Mitch Morinec obtained a complete defense verdict in a federal trade secret misappropriation trial. The case, tried in the U.S. District Court for the Southern District of Texas, also alleged that the Defendants breached provisions of their non-competition/non-disclosure agreements, intentionally interfered with the contractual relationship of over a dozen of Plaintiff’s clients, intentionally sought to interfere with 15 of Plaintiff’s employment contracts, and breached their fiduciary duty to the Plaintiff.
 
These disputes pitted two national companies, one of which, Plaintiff Visual Edge IT, was primarily a printer and copier company, that sued Impact Networking LLC, which offered managed IT, cybersecurity, and office equipment in markets across the country. Also sued were Impact Texas LLC and several Impact Texas LLC employees and affiliated companies. Visual Edge IT contended that the Defendants stole approximately 126,000 company emails containing numerous trade secrets including active and potential customer lists, internal financial metrics and sales strategy data for their Houston and Austin operations. Visual Edge IT argued to the jury that possession of this sensitive business data allowed the Defendants to open a “look-a-like” business in Houston. Additionally, Visual Edge IT alleged that the four individual Defendants all breached their non-competition, non-solicitation, and non-disclosure agreements when they left the Plaintiff’s employment to join the fledgling Houston start up office of Impact Networking Texas. Plaintiff blackboarded compensatory damages of approximately $6 million, including $5.1 million for trade secret misappropriation.
 
During opening, Mr. Kish put the difference between the two companies squarely at issue, along with why this litigation was being pursued: “The evidence will show in this case that this is not about confidential information and trade secrets.  It's going to show that you it's about vengeance, vengeance by Visual Edge against my clients, because they claim that they're competitors. The overlay of this entire case is the fact that they are not competitors.”
 
The defense of this case centered around the conduct of the Defendants, what their jobs entailed at both employers, and the differences in the two businesses in Texas. The jury was able to hear extensive evidence that the Plaintiff’s local operation was focused on printer & copier sales whereas Impact Networking Texas’ operation was over 98% managed IT, cyber security, and managed marketing. This focus allowed for the defense to put forth a compelling argument that there was no competition between the two companies in Texas and that the purported trade secrets were useless to their operations in Texas.
 
During closing, Mr. Motz argued: “The fundamental difference between our two companies: [at the Plaintiff’s company] 100 percent turnover is considered normal. It's only when you get above 100 percent that you start to worry. Well, let's juxtapose that with the words of [Impact CEO] Mr. [Frank] Cucco: " It's about the people you hire. You hire great people. You hire these great people, empower them, and let them do their work."”
 
The jury deliberated approximately five and a half hours and returned a resounding finding in favor of the defense: there was no misappropriation of trade secrets, no intentional interference with existing or prospective contractual relationships and no breach of fiduciary duty. As a result, no damages were awarded. Had a liability and damage finding been made by the jury, the parties would have then argued exemplary (punitive) damages, which could have risen as high as $12 million. Had the jury decided the case differently, a total verdict for the Plaintiff would have exceeded $20 million. 

Pictured, L to R: Kish, Motz, Morinec 

Trial Victory: FBT Wins Jury Trial Kentucky Utilities in Wrongful Death Case

Frost Brown Todd litigators Jeremiah Byrne, Griffin Terry Sumner and Andrew Palmer received a significant jury trial victory on behalf of Kentucky Utilities. FBT defended KU in the high-stakes litigation involving a 2018 wrongful death case. The trial, in which the Plaintiff asked the jury for a total award of $107 million, lasted eight days. The jury deliberated for just over three hours before returning a full defense verdict in favor of the team's client.

Background
In June 2018, a subcontractor was hired to demolish 14 apartment buildings so the site could be redeveloped into new, luxury apartments and condos. During demolition, the crew began crushing concrete and brick to be stored on site for use as fill in the future development. The subcontractor began stockpiling the crushed rock under the 7,200-volt KU distribution power lines, which ran through the property. On the date of the incident, he backed his dump truck up onto the pile, raised the bed to dump the load of gravel, and contacted the power line, resulting in his death. His estate sued FBT’s client, KU, and the general contractor. The general contractor settled about a week before trial, and only the claims against KU went to the jury.

FBT defended the case with two main defenses: First, the power lines in question far exceeded the height requirements set out by the NESC for the permanent use of the property, and the temporary construction did not change any requirements. The lines were measured immediately after the incident and found to be nearly five feet higher than required. FBT also defended on the grounds that workplace safety is controlled not by KU, but rather by the subcontractor doing the work, as per OSHA guidelines.

Pictured, L to R: Byrne, Sumner, Palmer

Clinton Fletcher, a DRI member since 2007, has joined Gray, Rust, St. Amand, Moffett & Brieske LLP as a partner, and his practice is focused in General Liability. Clinton has extensive experience in the areas of products and premises liability, trucking, aerospace, construction equipment and material handling equipment. 

Hinshaw & Culbertson has announced that Chicago-based law firm Adler Murphy & McQuillen (AMM) will join Hinshaw, effective April 1. The move will result in the formation of Hinshaw’s new Aviation and Aerospace Practice Group. Partner Michael G. McQuillen, a DRI member since 1997, and Todd M. Saranecki, DRI member since 2001, will make the move to Hinshaw’s Chicago office. Todd is a member of the DRI’s Aviation, ERISA and Insurance Committees. 

Porter Wright Morris Arthur LLP opened a new Tampa office which will include attorney Larry Ingram, who has been a member of DRI since 2012, and who will serve as partner-in-charge, as well as partner Jessica Alley, who has been a DRI member since 2013. 

Lamson Dugan & Murray LLP (LDM) welcomes attorney Andrew C. Johnson. Andy, a DRI member since 2004, has an active trial practice and has tried numerous jury and nonjury trials over the last several years for a variety of clients. His practice areas include commercial litigation, construction law and litigation, insurance law and litigation, and products liability. 

Goldberg Segalla announces the promotion of partner Seth L. Laver to vice chair of the firm’s Accountants Professional Liability Practice. In this role, Laver will provide leadership to enhance the full-service legal counsel, defense and guidance provided to client accountants and financial professionals. Seth has been a DRI member since 2011.

Chartwell Law is excited to welcome the newest members to Chartwell Law family, joining our firm in our Illinois offices. Adam Konopka, who has been a DRI Member since 2021, Alex Rives, a DRI member since 2022, and Devin Taseff, a DRI member since 2021.These attorneys have joined the General Liability and Casualty Defense practice group, specializing in the trucking and transportation industries. 

Lewis Brisbois is pleased to welcome DRI member Rick Mueller to its St. Louis office as partner in the firm’s Products Liability and Toxic Tort & Environmental Litigation Practices. Mr. Mueller has practiced in the products liability arena for 41 years. He currently serves as national counsel for manufacturers throughout the United States. Rick has been a DRI member since 1984. 

Ghzal Ullah has joined Perkins & Associates. Ghazal, licensed in Texas and Louisiana, will work with Mark Perkins and Adrian Stull in defending the industries that move America. She has been a member of DRI since 2022.  

The Foundation of the International Association of Defense Counsel (IADC) has announced the election of new officers and members of its board of directors for 2023-2024, effective February 2023. Several are members of DRI.

One newly elected IADC Foundation Board officer, who will serve a one-year term, is:

• Secretary-Treasurer Michael A. Airdo, a founding member at Airdo Werwas, LLC, in Chicago, Illinois. Michael has been a DRI member since 2003.

The newly elected IADC Foundation Board members are:

• Darby V. Doan, a partner at Haltom & Doan in Texarkana, Texas, and a DRI member since 1999.

• J. Calhoun Watson, managing member at Robinson Gray Stepp & Laffitte, LLC in Columbia, South Carolina. Cal has been a DRI member since 2000.

The IADC Foundation Board’s outgoing officers are:

• Mollie F. Benedict (president (DRI member since 2002)), a partner at Tucker & Ellis LLP in Los Angeles, California.

• Donna L. Burden (vice president (DRI member since 1989)), a founding member and managing partner at Burden, Hafner & Hansen, LLC in Buffalo, New York.

The Foundation Board’s outgoing members are:

• Joseph D. Cohen, (DRI member since 1998) a partner at Porter Hedges in Houston, Texas.

• Jessalyn H. Zeigler, (DRI member since 2006) a member at Bass, Berry & Sims PLC in Nashville, Tennessee.

The IADC is an invitation-only global legal association for attorneys representing corporate and insurance matters.

At the Tennessee Bar Association, Heidi A. Barcus was elected vice-president. Heidi has been a DRI member since 2008. She will take office this summer at the Tennessee Bar Association’s Convention and will automatically advance to president-elect in June 2024. Heidi is an attorney at Lewis Thomason in Knoxville, TN.

Barcus

2023 DRI Life, Health, Disability, and ERISA Seminar
April 26-28, 2023 | New Orleans, Louisiana
The nation’s best conference for Life, Health, and Disability practitioners is making its long-awaited appearance in the Big Easy, with best-in-class CLE, enhanced networking opportunities, and new ways to connect with your colleagues in a setting unlike anywhere else. Explore New Orleans with networking events that offer something for everyone and earn CLE from top industry leaders and practitioners. Plus, the New Orleans Jazz and Heritage Festival kicks off on April 28; come for the seminar and stay for a weekend of world class music and celebration. This is the seminar you will not want to miss!

2023 DRI Business and Intellectual Property Litigation Super Conference
April 26-28, 2023 | New Orleans, Louisiana
The practice of law is changing, from where we practice to how we preserve and present evidence. At DRI’s Business Litigation and Intellectual Property Super Conference, you will learn about generational differences impacting the practice of law, issues in front of the Supreme Court and the anticipated effects of future rulings, the sweeping changes affecting restrictive covenants, and much, much more. Our featured experts will cover a wide range of issues affecting the modern litigator in an informative and interactive setting. Come reconnect, recharge, and leave reenergized about your practice.

2023 Toxic Torts and Environmental Law Seminar
April 26-28, 2023 | New Orleans, Louisiana
The nation’s best conference for toxic tort and environmental practitioners is making its long-awaited appearance in the Big Easy, with best-in-class CLE, enhanced networking opportunities, and new ways to connect with your colleagues in a setting unlike anywhere else. Explore New Orleans with networking events that offer something for everyone and earn CLE from top industry leaders and practitioners. Plus, the New Orleans Jazz and Heritage Festival kicks off on April 28 – come for the seminar and stay for a weekend of world class music and celebration. This is the seminar you will not want to miss!

2023 Cannabis Law Seminar
May 2-3, 2023 | New Orleans, Louisiana
Join us in New Orleans to listen to thought leaders from across the industry – from businesses to bankers to scientists to lawyers to insurers – as they present on exciting subjects such as recent efforts to research and reschedule cannabis; privacy concerns for businesses and consumers engaged in cannabis transactions; fintech infrastructure specific to cannabis transactions; insurance concerns facing those involved in the cannabis industry; cannabis toxicology; and evolving rules and regulations of psychedelic and psychedelic-adjacent drugs in light of success with medicinal cannabis. Plus, don’t miss the cross-seminar presentation with the DRI Employment Law Seminar on the state of cannabis in the workplace.

2023 DRI Drug and Medical Device Seminar
May 3-5, 2023 | New Orleans, Louisiana
Join us in historic New Orleans for the Drug and Medical Device industry’s premier event for learning, networking, and advancing the defense of life sciences clients! You’ll hear from heads of litigation from the world’s foremost drug and medical device companies, get the latest insight on jurors’ changing perceptions, and celebrate Daubert’s 30th anniversary. This year, take advantage of new CLE opportunities on Wednesday afternoon and small group, off-site networking events on Thursday afternoon, which provide more opportunities than ever to network with renowned industry experts while enjoying the best of New Orleans.

2023 DRI Employment and Labor Law Seminar
May 3-5, 2023 | New Orleans, Louisiana
Join us in the Big Easy as we reconnect at DRI’s 46th annual Employment and Labor Law Seminar. The nation’s best employment law seminar brings together leading management-side employment and labor attorneys, in-house counsel, human resources professionals, and EPLI representatives from throughout the U.S. and Canada. Always intensely practical and accompanied by helpful written materials, this seminar is indispensable for experienced practitioners as well as those who are just getting started in labor and employment law. Don’t miss this opportunity to learn from some of the best practitioners and professionals in the labor and employment arena.

2023 DRI Wind Energy Litigation Seminar
May 15, 2023 | Chicago, Illinois
The national energy landscape is rapidly evolving, demonstrated by the increasing emergence of both onshore and offshore wind energy projects. At the 2023 Wind Energy Litigation Seminar, attendees will gain an in-depth understanding about the onshore and offshore wind sector from experienced attorneys and directly from the industry itself. Join us in Chicago to gain valuable insight into existing litigation surrounding the industry as well as potential future litigation.

2023 Trucking Litigation Essentials Seminar
June 13-14, 2023 | Charlotte, North Carolina
In today's high-stakes trucking litigation, a complete set of comprehensive strategies is essential to laying the groundwork for the defense of your case. Attendees will be shown how to handle an emergency call and how to thoroughly investigate an accident at the earliest stage. Experienced attorneys, claims professionals, and industry experts will discuss evidence preservation, pre-suit discovery, and effective strategies for early resolution.

2023 Diversity for Success Seminar
June 14-16, 2023 | Charlotte, North Carolina
The DRI Diversity and Inclusion Committee invites you to the 18th annual Diversity for Success Seminar and Corporate Expo in Charlotte, North Carolina. Attendees will have the unique opportunity to gain insights from and network with in-house counsel and potential referral sources. This seminar is designed to address diversity-related issues in the legal profession and provide resources and tools to incorporate in your career and organization to improve diversity, equity, and inclusion.

2023 Insurance Bad Faith and Extra-Contractual Liability Seminar
June 14-16, 2023 | Charlotte, North Carolina
DRI’s Insurance Bad Faith and Extra-Contractual Liability Seminar is the preeminent program for insurance executives, claims professionals, and outside counsel who specialize in bad faith insurance litigation. Bad faith issues and concerns permeate many aspects of insurance claims handling. When bad faith litigation ensues, these claims are some of the most complex and highest exposure claims faced by insurers. Our faculty, consisting of some of the nation’s leading in-house and outside bad faith lawyers, will share their valuable insights and strategies on evaluating and winning bad faith cases, as well as how to avoid them in the first place.

2023 Young Lawyers Seminar
June 14-16, 2023 | Charlotte, North Carolina
Come visit the Queen City for DRI’s Young Lawyers Seminar! If you are an attorney within your tenth year of practice, this seminar is for you. Join us as we explore how the practice of law is, first and foremost, a business. To grow your law practice, you not only need to hone and perfect your legal skills, but you also need to learn what it takes to run a successful business - from building and maintaining client relationships, to staying on top of current trends and developments and using technology to your advantage. In addition to exciting programming, there will be ample networking opportunities with attorneys and in-house counsel from across the country.

Medicare Secondary Payer (MSP) Act 101 – What You Need to Know Now
Produced by the DRI Center for Law and Public Policy’s Medicare Secondary Payer Task Force
April 18 | 11 a.m. CDT
MSP 101 will address Medicare Secondary Payer fundamentals that every claim professional and defense attorney should know. In this course, attendees will learn the history of the MSP Act, how to recognize when MSP is implicated, and basic compliance obligations of insurance companies and self-insureds as "Responsible Reporting Entities" under the MSP Act 1395y and corresponding CFR sections for reporting to CMS and protecting the Medicare Fund. If you need to refresh your knowledge of all things MSP, this is the right place to start. Additional courses will be coming soon.

When the Banks Collapse - What Law Firms Need to Know Now
April 19 | 11 a.m. CDT
We are fortunate enough to have a DRI member that not only focuses on the financial services industry but is the former head regulator of the Illinois Department of Financial Regulations, the regulatory body for the financial industry for Illinois. Bryan Schneider will join us to share his top tips for firms in the current banking climate.

The Importance of Biomechanical Experts in Trucking Cases
April 20 | 11 a.m. CDT
This program will cover the use of biomechanical experts in transportation litigation including the scientific issues these experts can speak to, the limitations of biomechanical science, and how to defend legal challenges against a biomechanical expert.

DRI Member Survey Top Risk Management Topics, Part II: Conflicts, Calendaring, and the New Work Environment
April 25 | 11 a.m. CDT
In early 2022, DRI released its first member risk management survey, created in partnership with LawyerGuard (the first DRI Premier Corporate Partner) and Barron & Newburger PC’s Attorneys Risk Management. Join us for this second presentation in a series that addresses concerns revealed by your survey responses. Our panel will discuss best practices in the identification and handling of conflicts, management of calendaring systems to avoid claims and complaints, and procedures for adapting your firm to a new and evolving work environment.

Learn How to Take Control of Your Law School Debt
April 26 | 12 p.m. CDT
Sponsored by Laurel Road
With the federal student loan payment pause expected to expire by June 30, and interest rates on the rise, it’s an uncertain time for many attorneys who may have a great deal of student debt. Now is the time to get your questions answered and start planning for the changes ahead. DRI's Solution Marketplace partner Laurel Road will share best practices to evaluate, identify, and prepare your repayment strategy.

An Overview of Regulations and Litigation involving PFAS in the United States
May 18 | 11 a.m. CDT
This webinar will provide an introduction to PFAS including an overview of their manufacture, uses and health effects. It will also discuss state and federal regulations setting limits for their presence in air, water and soil, as well as standards for remediation of contaminated sites. It will further discuss proposed legislation that may be enacted on both the state and federal level.