The Voice^TM

It is now summer of 2021. Fortunately, we are slowly coming out of the global pandemic known as COVID-19. People are getting vaccinated and escaping the stress and strain of living and working from home full time. We are starting to spend time with loved ones who we had not seen for a long time. We feel safer leaving home and enjoying restaurants, parks, and travel. Yet, while we revel in our newfound freedoms, it is imperative that we do not forget those who will never have the opportunity to enjoy restaurants, parks, travel, or social gatherings with loved ones because their lives were senselessly cut short.

George Floyd's murder was videotaped and repeatedly published via social media, news outlets, and online video streaming platforms. While we celebrate our lives, his young daughter will have that video as a constant reminder of her father's murder. When it comes to her, the focus is on her sweet voice when she said, "My daddy changed the world!" However, we must never forget the emotional trauma she has and will likely continue to endure for the rest of her life because of that video and the manner in which her father was killed.

Many people across the country celebrated when Derek Chauvin was convicted, feeling like justice had been served. When the verdict was read, I was in my car waiting in the carpool lane to pick up my daughter from school. My eyes welled with tears as I heard the charges and findings of the jury read aloud. In that moment, it felt like the first step had been taken in saying that yes, Black Lives Do Matter.

Sadly, there are many who continue to blame George Floyd for what happened to him and refer to his criminal past, which was irrelevant for the purpose of the stop he was involved in on that fateful day. Furthermore, Chauvin's conviction does not appear to have deterred certain law enforcement agents from continuing in their blatant disregard for the civil rights of Black lives, still believing they are "untouchable" with an indignance about their right to handle suspects in any way they choose. After all, Black skin is dangerous and to be feared. Black skin warrants more aggressive measures. Black skin is the enemy.

Personally, I am frustrated and dissatisfied. I want answers. I need a logical resolution that I can understand. I am utterly confused as to why the simple concept of, "equal rights for all" is difficult to instill in a country that touts itself as a democracy. As a lawyer, I want an outline and specific strategy to resolve the divide and ongoing injustice. And yet, I have nothing.

And then, just when I am feeling discouraged and hopeless, a conversation inspired me and I am motivated to keep doing the work. I recently had the opportunity and pleasure to speak with someone from #blacklivesmatter. The conversation started with me asking BLM if they would be willing to participate and dialogue on a panel of people from opposing sides. My thought process was that dialogue was important to create an understanding among the differing perspectives. In my naïve mind, I thought that was the best way to move the needle. However, during this conversation, I learned otherwise. BLM has a strict policy of not sitting down at the same table with law enforcement, as law enforcement and its practices is the very institution that it seeks to dismantle. I was perplexed and challenged this position, arguing that as an organization seeking the pursuit of social justice, we must, at a minimum, appear to be open to dialogue and, in fact, work with the organization that we take issue with.

In response to my challenge, I was reminded that BLM is radical in its approach as they are true abolitionists. What resonated with me the most was the comparison to my ancestors, who fought for the very rights I enjoy today. Slaves on plantations could not "sit at the table" with slave owners in the hopes of coming to a resolution. Freedom riders could not "sit at the table" with law enforcement in their pursuit of civil rights. Similarly, BLM refuses to sit at the table with law enforcement. This analogy was very powerful to me as we often forget that although slavery is no longer legal, it has a lasting impact that continues today.

Therefore, the reason this article is titled "Unapologetic" is because my conversation with BLM taught me that I must be unapologetic in my pursuit of social justice. I must continue challenging loved ones, friends, and colleagues when I witness acts of social injustice and I must be unapologetic in doing so. We cannot be timid. We cannot be afraid. We cannot tip toe around uncomfortable conversations. We must be direct, uncompromising, and unapologetic because we are on the right side of history.

Stacy L. Douglas is a partner and director of Diversity & Inclusion with Everett Dorey LLP in Irvine, California. Ms. Douglas has extensive experience working in a variety of areas, successfully defending transportation companies, major retailers and hotels brands, homeowner’s associations, individuals, automobile dealerships, and public entities in personal injury, product liability, employment, toxic tort, trucking/transportation, and real property disputes. Ms. Douglas was the recipient of the 2019 DRI Albert H. Parnell Outstanding Program Chair Award. She is currently vice chair of the DRI Diversity & Inclusion Committee and serves as the chair for the 2021 DRI Annual Meeting.

Cancel Ransomware

A tough-on-crime approach specifically targeting ransomware is one obvious option. Cybercrime in the form of fraud or theft such as hacking and phishing is already illegal in most states. Several U.S. states, including Texas, West Virginia, and Oklahoma, have criminalized the use of ransomware or have considered doing so, and there is support in the UK to use the Computer Misuse Act to target the ransomware crisis. While criminalization communicates society’s intolerance for a form of behavior (and this may be reason enough to recognize the unique and pernicious effect of ransomware by making its use a crime unto itself), it is of little use beyond the symbolic if criminals—who most often harbor in countries with no appetite to prosecute or discourage them—cannot be extradited and tried, assuming they can even be found. Technical and geopolitical limitations have made such laws largely moot until very recently. The revelation that cryptocurrency can indeed be traced, perhaps ultimately all the way back to the criminals themselves, would seem to breathe new life into this option. However, this approach moves at the speed of criminal legal proceedings, and as with most criminal laws, we shouldn’t assume it will deter all or even many career criminals.

Cancel Payment

An alternative to punishing criminals you can’t catch is to deter victims from perpetuating the ransomware ecosystem. This could be done by outlawing paying ransoms. The United Kingdom has laws criminalizing money laundering and the financing of illegal activities that are direct by-products of ransomware payment. So, lawmakers are looking at explicitly banning governments, companies, and other victims from paying the ransom demand when faced with a ransomware attack. A recent report by a task force of top tech executives reporting to the Biden administration was unable to reach a consensus on whether payment should be prohibited; others assert forcefully that it should. For example, the U.S. Energy Secretary recently stated publicly that she would ban ransomware payments.

Illegalizing payment of ransomware can release organizations and companies from the burden of payment. With victims literally unable to pay by law should ransomware payouts be outlawed, the victims of the attacks can possibly be liberated from the prisoner’s dilemma scenario that ransomware demands often bind them into. On the other compelling side of the legislative debate, there can be extremely problematic consequences if a complete ban on ransom payments is enforced. Disallowing private businesses to pay ransomware demands to regain their lost data can be seen as overreaching by courts and legislatures into the internal affairs and business decisions of corporations (and could have devastating economic consequences, as these companies are driven out of business). Illegalization of ransomware payments by business may also cause threat actors to target organizations that fall within government control (i.e., government agencies; first responders; and in some countries, medical institutions).

Cancel Crypto

The coin of the cybercriminal realm is cryptocurrency, as it requires no bank as intermediary and is extremely difficult to trace back to payment recipients. As other payment methods are traceable or impracticable (a cash ransom payment of $5M USD would fill two suitcases; imagine the logistics of cash payments for payments in the tens or hundreds of millions), cryptocurrency is the only practicable way to facilitate paying the massive ransom demands that have become increasingly common. Some argued that crypto should be banned outright to stamp out this form of crime, and that the loss to society in doing so would be negligible as cryptocurrency “benefits nobody except criminals and speculators.” The crypto currency disagrees, and notes that while crypto “certainly makes ransomware crimes safer and easier, but getting rid of it wouldn’t fix the problem.” With so many people invested in crypto and with traditional financial institutions already invested in developing their own virtual currencies, it seems unlikely that an outright ban will find enough support from the business community. That said, measures short of a complete ban are also being considered. In 2020, the U.S. Treasury Department proposed rules requiring those dealing in Bitcoin to make greater efforts to determine the real-world identities of persons making Bitcoin withdrawals, while this year, the global body responsible for standards for anti-money laundering bodies recommended collection of crypto network user data. Naturally, the crypto community has balked these admittedly far-reaching measures as well, with some decrying “mass warrantless surveillance.”

A “Comprehensive Framework for Action”

The Ransomware Task Force mentioned above (which brings together tech industry leaders and thought leaders from the non-profit sector) has proposed a “comprehensive framework” for dealing with ransomware, setting as its goals: (1) deterrence through a “nationally coordinated, comprehensive strategy,” (2) disruption of the ransomware business model to make ransomware less profitable, (3) assisting organizations to better prepare for ransomware attacks, and (4) more effective response to ransomware attacks. Ransomware Task Force, Combating Ransomware: A Comprehensive Framework for Action: Key Recommendations from the Ransomware Task Force, published by the Institute for Security and Technology, at 37. The Task Force’s final report makes detailed recommendations and is worthy of study. Notably, one such recommendation is to “exert pressure on other nations that refuse to take action against ransomware criminals.” Id. at 3, It will be interesting to see if, in this respect, the task force’s report influences the Biden administration’s approach to relations with Russia, notorious for its benign indifference to cybercriminals launching attacks on American targets from within Russia.

Conclusion

There are numerous policy options for dealing with the threat posed by ransomware. Some would be immediately effective, but would meet with strong resistance from some sectors of the economy, and the prospect of huge unintended consequences. Others might work only on paper; still others require a slow drumbeat of persistent action and sustained cooperation. It will be interesting to see what options nations choose, now that the threat has reached the level of national and international crisis.

Brent J. Arnold is a partner practicing in Gowling WLG's Advocacy department in Toronto, where he specializes in cybersecurity and commercial litigation. Brent heads the firm's Commercial Litigation Technology sub-group. He also leads cybersecurity initiatives for the firm's Financial Services Regulatory Group, and is a member of its InsurTech and Tech T.O. groups. Brent's experience includes cyber breach coaching, cyber risk analysis, class actions defense, consumer protection, implementation and other disputes for e-commerce vendors and software developers, administrative and insolvency law, shareholders' rights, class actions, employment contracts, and general contractual disputes.

Sigma Khan is a summer student in Gowling WLG's Toronto office. Sigma is completing her Canadian and American dual juris doctor at the University of Windsor Faculty of Law and the University of Detroit Mercy School of Law. During her law studies, she has worked as a judicial extern law clerk for the Honourable Judge David J. Allen at the Wayne County Third Circuit Court in Detroit, and as a research assistant in Technology Law at the University of Windsor. Sigma will focus her summer in the firm's Advocacy Department. She is a law student member of DRI.

The authors of this article are, respectively, a therapist trained in trauma and addiction and a trucking defense attorney who see the systemic problem with trauma and addiction. The psychological response to a catastrophic accident triggers or unmasks serious mental health issues such as depression, anxiety, disordered eating, and substance use or abuse.

The present system of law and wellness are built on the idea of behavior modification that tends to look at the end-result. Success is not based on the emotional wellness of the client, but on the value of the settlement. Mental health clinicians know that the apparent financial incentive does not determine happiness nor increase mental stability or health. People involved in catastrophic accidents report a substantial reduction in health-related quality of life compared to other patients, including long-term psychological and physical disability.

Many early or rapid-response lawyers suffer from vicarious trauma. They see and hear things that the average person does not. Even the average plaintiffs’ personal injury attorney does not often encounter what the early response defense lawyer hears and sees with details of death, injury, and trauma on a monthly, if not weekly basis. To deal with this type of immersion many lawyers disassociate. This is a trauma response to cope, much like any other first-responders.

Like the police or fire department, first-response attorneys do not get a break from the pain and the grief of their clients, so they turn to a very fact-driven, unemotional, exercise. This leads to hyperarousal, hypo-arousal, or dissociation.
Often, lawyers don’t understand their own trauma so they fail to relate to their clients. The lawyer, trying to prepare this client, shows a picture of the wreck, and asks details about the incident in the first meeting. This leads to retraumatizing the client and breaking trust, which leads to an unhelpful witness and ends in unhealthy relationships with the community.
From an attorney’s standpoint, it’s necessary to get the facts early, but from a clinician’s standpoint, this is highly inappropriate and unhelpful in the long-term.

Although very few defendant-drivers are evaluated or treated for trauma, most of the plaintiffs that are evaluated and treated would do most anything to have not gone through the trauma. Despite that, many defendant-drivers are stoic, they too have suffered substantial trauma, and it’s time for the defense bar and the institutions it represents to offer post-traumatic treatment to the driver and post-traumatic training for lawyers, safety managers, and adjusters.

How can we prevent vicarious trauma and mental health disorders in attorneys and a more trauma informed approach to care when interacting with drivers who have been involved with major traumatic incident?

1. By normalizing mental health services for attorneys and clients, we prevent burnout, addiction, and mental health issues. This leads to clients who are much more honest and helpful. When people feel safe and secure with a lawyer, they are fully transparent and helpful with the case.

2. Trauma-trained attorneys should work hand in hand with a mental health professional to get the best outcome for the client, not only the financial best interest of the company, but the mental-health best interest of the defendant-driver. Understanding trauma and mental health issues allows an attorney to communicate these things clearly to a judge or jury and to de-escalate the client for better and more clear information leading to success. 

3. For more information, the American Bar Association has recommended Dr. Nadine Burke Harris’ TED Talk, “The Body Keeps the Score: Brain, Mind and Body in the Healing of Trauma,” by Bessel Van Der Kolk, M.D. and/or The Deepest Well by Nadine Burke Harris, M.D. These are invaluable resources with information about how trauma impacts humans as well as the most effective treatment.

Clint Davis is an Army Veteran who has a Bachelor's in Psychology from Louisiana Tech University and Master's in Marriage and Family Therapy from Fuller Theological Seminary. He is an ordained minister and Licensed Professional Counselor trained in EMDR for trauma, Restoration Therapy for couples and families, a Certified Clinical Trauma Professional (CCTP) and is also a certified sex addiction therapist (CSAT). Clint owns Clint Davis Counseling and Integrative Wellness where he has a team of mental health professionals, doctors, chiropractors, and dietitians who help people recover from trauma to the mind, body, and spirit. He is also currently the Director of Recovery for The Hub: Urban Ministry, which works to fight against poverty and human trafficking. He is married to his wife Jacie and has two sons Grady (6) and Jude (3).

Mark Perkins graduated magna cum laude with a degree in journalism in 1983. In 1987, he graduated from Paul M. Hebert Law School at LSU Baton Rouge and was admitted to practice law in 1987. Before DNA evidence became common-place, Perkins was the first to use DNA evidence in North Louisiana in the successful prosecution of a serial rapist. In 1998, Perkins started his own law firm focusing on the defense of commercial and trucking accidents. Perkins is licensed in Louisiana and Texas, all federal courts in Louisiana, the Federal Eastern District of Louisiana, the United State Fifth Circuit Court of Appeal, and the United States Supreme Court. He is a member of DRI and its Trucking Law Committee, Louisiana Association of Defense Counsel, Trucking Insurance Defense Association, Transportation Lawyers Association, and the Louisiana Motor Transit Association. Mark has conducted numerous seminars for trucking and insurance industries regarding the defense of complex litigation claims, particularly trucking claims. He is the editor-in-chief for the quarterly newsletter of the Trucking Industry Defense Association. He is married, has twin daughters, and six grandchildren. He speaks and writes on mental health issues of attorneys and trauma-education for attorneys.

Some Judgments and Legislation Addressing Warnings Overuse

Concern regarding the overuse of warnings continues to be a topic of interest and debate decades after it was first raised in academic research and warnings-related legislation. For example, following a 2019 ruling by the Ninth Circuit to uphold the City of Berkeley’s ordinance requiring that retailers provide cell phone purchasers with a notice regarding the potential for exceeding federal government radio-frequency (RF) exposure guidelines, a dissenting judge noted the “downsides to false, misleading, or unsubstantiated product warnings.” In support of her dissent, she referred to a passage from Frantz et al. (1999) regarding potential downsides to the proliferation of warnings about low-level risks (CTIA v. City of Berkeley, 2019). Along similar lines, the EPA has recently taken issue with the listing of glyphosate as a chemical “known to the state of California to cause cancer” by the California Office of Environmental Health Hazard Assessment (OEHHA). In 2019, the EPA informed pesticide registrants that it would consider Proposition 65 warning language regarding glyphosate carcinogenicity to be a “false and misleading statement,” rendering products bearing the warning “misbranded” under FIFRA (EPA, 8/7/19). California’s Proposition 65 warning requirements regarding glyphosate are currently being litigated. In recent rulemaking regarding updates to Proposition 65 warning requirements, California regulators have also expressed concerns about “over-warning” with regard to the use of Proposition 65 warnings on products that do not warrant such warnings (OEHHA, 2021). Advocating for the potential benefits of their proposed revisions to Proposition 65 short-form warning requirements, OEHHA stated that “[a] reduction in over-warning furthers the purposes of the Act by reducing the unnecessary proliferation of Proposition 65 warnings where a chemical exposure is unlikely to occur and ensuring that consumers are provided with truthful, accurate information about anticipated exposure.”

How Can Warnings Overuse Be Mitigated?

As described by Shah, Hall, & Diebol (2016), regulatory frameworks that designate when and how warnings should be provided are one means by which potential problems associated with warnings overuse can be mitigated. For example, by designating thresholds for communicating information, such frameworks can limit informational load while also reducing the potential for informational “noise” and false alarms. Promoting awareness about the kinds of warnings that may result in overuse and the potential consequences of such overuse can also help mitigate warnings overuse. Frantz (1999) has established a helpful framework for recognizing warnings overuse and its potential implications. While questions of when and how to provide warnings are not clear cut, particularly in situations where there is uncertainty or debate regarding the nature or magnitude of a risk, such resources can be helpful when considering these difficult questions.

For questions about this topic contact Raina J. Shah, M.S.E., C.P.S.M., CPE, Farheen S. Khan, Ph.D., or J. Paul Frantz, Ph.D., C.P.S.M., CPE at Applied Safety and Ergonomics (info@appliedsafety.com), a Rimkus company.

Types of Claims

There are several different types of claims that the defense attorney will be faced with when confronted with the defense of a healthcare provider. The plaintiffs’ bar is well aware of the various exceptions and exclusions in professional liability insurance policies relative to intentional acts and sexual misconduct. As such, the complaint will typically begin with a claim for medical negligence in which plaintiff’s counsel will submit expert testimony confirming a deviation from the applicable standard of care and causation. In addition the aforementioned, plaintiffs generally allege a lack of consent to the sexual acts or inappropriate touching. This should be distinguished from the frequently encountered claim of lack of informed consent typically seen in cases where the healthcare professional failed to advise the patient of the various risks associated with a particular treatment. In addition, often there will be the general claim of a battery being perpetrated by the healthcare professional. If presented with claims of consent and battery, you should check your jurisdiction to ascertain whether the plaintiff has to elect to proceed with one or the other claims. Regardless, it is suggested that you evaluate your local law and determine if a plaintiff can simultaneously assert a claim for medical battery (lack of consent) and a lack of informed consent claim, because the required proof by its very nature typically contradicts the elements of the two claims. Lastly, plaintiffs will often include a claim of sexual assault/abuse as a catchall.

The attorney defending one of the aforementioned claims above should consider advising the healthcare provider to retain a criminal defense attorney early on, prior to responding under oath to any discovery or participating in a deposition. The need to retain a criminal attorney can depend upon various factors, including whether the statute of limitation has run for any criminal charges being filed against the provider. If the provider elects to proceed with retention of a criminal defense attorney, you can then work with that attorney in preparing your client to testify and respond to discovery.

More often than not, the doctor will receive a reservation of rights letter from their malpractice insurance carrier advising that there will be no coverage for any claims arising out of an intentional act and/or sexual misconduct. Therefore, depending upon your jurisdiction, you may need to be prepared to address this with your client and/or recommend that the client retain personal counsel to advise of the ramifications of the reservation of rights should an adverse judgment by rendered against the provider.

Discovery Phase: Pre-Deposition

Although discovery is similar to our traditional defense of healthcare providers, there are some aspects that are unique to these types of claims. You should check the local police department records to ascertain whether the plaintiff has filed a complaint with the department. If so, not only should you obtain a copy of the complaint itself, but you should obtain any written statement that may have been provided by the claimant or others in support of the claim. Also, if available, you should check with the local licensing board to see if any reports were made by the plaintiff. We also typically send out subpoenas to the local sexual assault centers in proximity to the healthcare providers office and, more importantly, to the venue where plaintiff resides. Employment records may also be valuable as they could reveal any time off from work that the patient has taken since the incident as well as the basis for the same. Lastly, it goes without saying that a thorough search of all social media should be performed and retained.

The aforementioned documentation is critical in determining whether the plaintiff has made any inconsistent statements regarding the description of the incident and/or the effects of the same. For instance, if the patient is alleging that the healthcare provider touched her inappropriately on the first office visit, but yet continued to return for subsequent treatments, this would help establish a likelihood that the behavior did not occur or, at the very least, was consensual. Police reports are usually invaluable for providing the defense with a clear and concise description of the incident prior to the plaintiff retaining an attorney and subsequent embellishment of the incident. Also, the location and duration of the inappropriate touching may change over the course of time as the plaintiff is required to describe the incident to various authorities and subsequent treating healthcare providers. If the subsequent statements are inconsistent, then this will provide the defense counsel with an opportunity for an effective cross-examination. 

We also recommend that you obtain prior and subsequent treating medical records. The purpose of these records is not only to document any pre-existing conditions (such as depression, anxiety, and PTSD), but also to ascertain whether there are any inconsistent statements in those records compared to the other reports and information which you receive in the discovery phase. Also, you are looking for any absence of reporting to the providers which you would expect to be included if in fact the patient had experienced the alleged sexual touching and/or symptoms associated with an assault or battery.

Mandi J. Karvis, a partner in Wicker Smith’s Phoenix office, has been practicing for nearly 20 years, defending healthcare clients in professional liablity lawsuits, as well as licensing board matters. During that time, Ms. Karvis has tried many cases to verdict in state and federal court. Over the years, Ms. Karvis has developed a niche practice area and has been asked to try cases all over the county involving physicians who have been accused of sexual impropriety with a patient.

John F. Floyd, Sr., managing partner of Wicker Smith’s Nashville office, has been practicing for 30 years, defending healthcare clients in professional liability lawsuits. During that period of time, he has tried over 100 jury trials to verdict. John is board-certified in medical malpractice by the American Board of Professional Liability Attorneys, and he is actively engaged in representation of healthcare professionals throughout the United States.

1) The Internet Has Changed How Businesses Find and Select Law Firms

From a marketer’s perspective, law firms are challenging. And it’s not the lawyers (I like lawyers): it’s the way firms are structured. Pre-internet, clients chose firms based solely on geography and personal relationships. They met attorneys at local Chamber luncheons and Rotary events, went to church with them, or sent their kids to the same school. Thus, law firms became generalist shops serving a wide range of clients with varying needs.

Today, however, geography and personal relationships aren’t enough. The internet has forever changed relationship-building.

Clients are now reading email alerts, social media posts, bylined articles, and blog posts from a variety of law firms, including those who don’t attend the same Chamber or Rotary meetings. If those alerts or articles speak directly to the client’s industry and demonstrate in-depth knowledge of its nuances, the client is likely to choose the attorney from that firm—with whom they might not have any personal connection—over the one they met at a charity function.

2) On the Internet, It’s Difficult to Differentiate a Generalist Law Firm

Differentiation has become critical in today’s internet-driven market. We now have the world’s knowledge at our fingertips, which makes decision-making more complex. Our brains can only process so much information—that’s why simpler, personalized (i.e., it speaks directly to a particular person’s needs) messaging cuts through the clutter. Advanced legal skills and client service are table stakes. Clients are now willing to shop around, one case at a time, until they find a firm and a litigator who meets their precise needs.

3) Everyone Thinks Their Industry Is Unique

While you may think you can quickly get up to speed on a client’s industry, they likely think differently. Your client is reading industry-specific publications, going to industry conferences and discussing industry trends and issues (using industry jargon) with industry colleagues. They are steeped in their industry’s world.

If a law firm speaks the same language, addresses the same issues, knows the same people, goes to the same conferences, and publishes in those industry magazines, their chances of standing out from a generalist firm skyrocket.

4) Practice Broadly, Market Specifically

Am I advocating a wholesale change of your firm’s structure? No. Instead, I’m suggesting that you continue to practice broadly, but narrow your marketing focus. Look at your existing and past case load. I’m guessing that you’ll find one or two industries where you have significant experience. Or there’s an emerging industry that you’ve identified as a growth area. Here’s what an industry-focused marketing strategy could look like:

• A monthly email newsletter with one or two articles on a particular industry’s needs, sent only to clients in that industry;

• A series of webinars focused on industry-specific topics;

• A media relations campaign focused on industry trade publications;

• Speaking engagements at industry-focused conferences and events, positioning the speaker’s expertise in that industry;

• An industry group page on the firm’s website, with a curated collection of resources;

• An annual industry event, sponsored and hosted by your firm, dedicated to current and potential clients in that sector; and/or

• An annual research report, focused on industry-specific risks.

Once you achieve some success with one industry, you can expand to another. You’ll know what tactics work the best for your firm’s resources and skillsets and can replicate that to another industry. And, you’ll achieve more bang for your buck rather than a scattershot marketing approach with one or two marketing “touches” in any given industry per year.

Michelle Calcote King is the Principal & President of Reputation Ink, a public relations and content marketing agency serving law firms. Contact her at michelle@rep-ink.com or 904-374-5733.

Reputation Ink is a Premier Sponsor for DRI's Managing Partners and Law Firm Leaders Conference. View the program and register.

I had a chance to connect with DRI member Luis Leitzelar, a partner with Bienvenu Bonnecaze Foco & Viator in Baton Rouge, Louisiana. Lou has been a DRI member since 2004 and was one of our May recruiters. I asked Lou what he sees as the greatest value in belonging to DRI. He replied, “Getting to know and learn from people who are good at what they do from across the spectrum and allowing me to improve my networking and skillset as a defense lawyer.” Lou added, “It has been extremely rewarding to be an active member of organizations such as DRI that embrace such core principles as diversity, inclusion, and professionalism, which I have worked to champion my entire career.”

Lou referred Jade Avant, an associate at his firm and first time DRI member. Jade noted that she looks forward to getting engaged with DRI, and DRI’s committees are one of the aspects of membership that she was most excited about. Jade told me, “I am eager to take advantage of the committee-specific opportunities to continue learning and refining in the areas that I already practice, as well as getting exposure to new areas.”

In addition to the referrals from our individual members during the month of May, our substantive law committees (SLCs) also stepped up. The Employment and Labor Law Committee added 10 new members in the month of May, and the Trucking Law Committee added 16.

Steve Pesarchick of Sugarman Law Firm, Chair of the DRI Trucking Law Committee, shared his thoughts on why his committee was so active during the month of May. “Members are the life blood of DRI. Recruiting new members ensures the future success of DRI. For the Trucking Law Committee, referring new members supports our future and creates quality trucking attorneys to defend of our industry.”

Steve also shared his advice for new members to make the most of their DRI membership, “I would encourage new members to get involved. Once you join DRI, you need to focus on a committee. Once you choose a committee, you need to become part of the leadership of that committee.”

Sergio E. Chavez of Rincon Law Group, Membership Chair of the Trucking Law Committee, added, “DRI offers the opportunity to create relationships with other attorneys who can refer work to you, and being active in a committee allows you the opportunity to get your name out there. These are the best incentives DRI offers and are my best-selling points to non-members.”

The Employment & Labor Law Committee was another committee that was highly engaged in May Membership. Dessi Day, Senior Counsel with Greene & Roberts in San Diego and current Chair of the committee, talked about why she encourages members to join. She noted, “I want everyone to experience the generosity of my DRI tribe. I want other lawyers to have the opportunity to share wisdom, draw insights, and be part of my awesome community of defense lawyers from all 50 states and beyond.” In addition to the personal benefit, Dessi shared thoughts on her committee’s efforts in May. “Our community engagement matters to each one of us and we want more of us in the mix,” she said. “More DRI members means more insights, more knowledge, bigger network, and more fun, not less!”

As we get back to business, and look to return to “normal,” building connections with other members is a primary benefit of engaging in DRI. I hope you will continue to tell your DRI story and help us build this community for the future. I also hope you will continue to find new ways to get engaged with DRI, be it through a committee, an upcoming seminar, or the Annual Meeting in Boston in October.

Thank you for being a part of DRI!

Henry D. (Hank) Fellows, Jr. and Michael Gretchen

DRI members Henry D. (Hank) Fellows, Jr., and Michael Gretchen of the Atlanta law firm of Fellows LaBriola LLP obtained a dismissal of all the claims against their client, Blake Goodman, in the federal case styled as Wade Park Land Holdings LLC, et al. v. Jonathan Kalikow, et al., 2021 WL 728185, ___ F.Supp.3d ____ (N.D. Ga. 2021). Seeking punitive damages and attorneys’ fees, the plaintiffs alleged in their first amended complaint that the defendants engaged in (1) federal RICO violations; (2) federal RICO conspiracy; (3) Georgia RICO violations; (4) Georgia RICO conspiracy; (5) breach of fiduciary duty; (6) conspiracy to breach fiduciary duties; and (7) misappropriation of trade secrets under the Georgia Trade Secrets Act (GTSA). 

Defendant Blake Goodman, represented by Fellows LaBriola LLP, filed a motion to dismiss as to all counts of the first amended complaint. The remaining defendants, Jonathan Kalikow, WP Development Partners LLC, Gamma Lending Omega LLC, Gamma Real Estate Capital LLC, and GRE WP LLC ("Kalikow defendants"), were represented by other counsel. They filed a motion to dismiss and a motion to transfer the case to the U.S. District Court for the Southern District of New York pursuant to a forum-selection clause in a certain limited liability company agreement entered into between plaintiffs and the Kalikow defendants.

U.S. District Judge Timothy C. Batten granted the motion to dismiss of defendant Blake Goodman by order entered on February 24, 2021. Judge Batten also granted the Kalikow defendants' motion to transfer the case to the U.S. District Court for the Southern District of New York, pursuant to the agreed-upon forum-selection clause in the limited liability company agreement, but declined to address their motion to dismiss.

As to Goodman's motion to dismiss, the court held that the plaintiffs failed to plausibly allege a federal RICO violation against Goodman. The court stated that the plaintiffs failed to show that Goodman "...(1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff," citing Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020). Messrs. Fellows and Gretchen of Fellows LaBriola LLP also represented Petland, Inc., in that purported RICO case.

The court also held that the plaintiffs failed to plausibly allege a federal RICO conspiracy or a Georgia RICO violation or conspiracy. The court noted that although Georgia RICO is generally broader in scope than federal RICO, in this case, the plaintiffs failed to plausibly allege that Goodman engaged in a pattern of racketeering activity or shared trade secrets with the remaining defendants.

As to the remaining claims against Goodman, the court held that the plaintiffs failed to plausibly allege that Goodman misappropriated trade secrets under the Georgia Trade Secrets Act, O.C.G.A. §10-1-760, et seq. The court also held that the plaintiffs failed to plausibly allege that Goodman owed them fiduciary duties or that he breached such duties.

Tim Dolan and Meghan Bothe

McGuire v. Cooper, Case No. 8:16-CV-04 in the U.S. District Court for the District of Nebraska, was a §1983 case stemming from the sexual assault of the plaintiff by an on-duty Douglas County Sheriff’s Office deputy in 2013. The plaintiff sued Douglas County, Nebraska, Douglas County Sheriff Timothy Dunning, and (by then former) Deputy Cory Cooper. DRI members Tim Dolan and Meghan Bothe (pictured) represented Douglas County and Sheriff Dunning. The district court denied qualified immunity to Sheriff Dunning after giving dispositive weight to the existence of 15 complaints involving any hint of sexual misconduct filed with the Sheriff’s Office from 1998 through 2015, even though none involved Cooper. On appeal, Sheriff Dunning argued that the complaints were not notice of a need for different training or supervision because none violated the Constitution. He argued that, contrary to controlling law requiring a widespread pattern of very similar constitutional violations for supervisory liability, the district court treated all complaints equally and disregarded their respective investigations and dispositions. This undermined its conclusions that Sheriff Dunning was on notice of and deliberately indifferent to a pattern of constitutional violations very similar to those committed by Cooper. In this case, the pattern had to be more than general “sexual misconduct”—it had to be unconstitutional acts similar to an officer using his authority and position to separate a woman from her boyfriend in a park and coerce sexual contact. The Eighth Circuit agreed and rejected the plaintiff’s “sexual misconduct” catch-all. See 952 F.3d 918 (8th Cir. 2020). In reversing the denial of qualified immunity, the Eighth Circuit ruled that the prior complaints were not similar in kind or sufficiently egregious in nature as Cooper’s sexual assault of the plaintiff and could not establish a pattern of unconstitutional sexual assaults against members of the public. On remand, Douglas County filed a second motion for summary judgment, arguing that the threshold showing for the plaintiff’s §1983 Monell claims was the existence of a pattern of constitutional violations similar in kind to Cooper’s sexual assault upon her, and the Eighth Circuit found that it did not exist. The district court agreed and dismissed all remaining claims against Douglas County.

In the almost five years of this case, Tim and Meghan reached out to the DRI community more than once and had many helpful, informative conversations with DRI members. Thanks to all who gave sound guidance and support.

Paul Caleo and Lynn Rivera

In Jaime Vidalez v. Arborworks, Inc., the plaintiffs filed a negligence action against defendant Arborworks, Inc., in the  Superior Court of California - County of Mariposa for damages arising out of an automobile accident wherein a vehicle containing four Arborworks’ employees drove off a cliff on Highway 49 near Yosemite and rolled 1,500 feet down the hillside. One of the three plaintiffs, who was carried up the hillside by first responders, alleged serious orthopedic and traumatic brain injuries that were permanent and disabling and affected his ability to work in any capacity. The plaintiffs alleged that Arborworks was vicariously liable for the motor vehicle accident because the driver of the vehicle was employed by Arborworks and was on a special errand driving the employees of Arborworks from their mountain cabin to a Spanish-speaking CPR class.

On behalf of its client, the Burnham Brown team filed a motion for summary judgment arguing that there was no evidence of vicarious liability because the special errand exception to the going and coming rule did not apply. Specifically, the Burnham Brown team argued that the trip giving rise to the accident was a personal endeavor of the plaintiffs as a matter of law. Alternatively, the Burnham Brown team argued, even assuming the special errand doctrine applied to the trip, that the plaintiffs’ exclusive remedy would be limited to workers’ compensation claims because they would be found to be in the course and scope of their employment with Arborworks. After engaging in significant discovery and making a policy limits demand, plaintiffs’ counsel ultimately withdrew from representation rather than oppose the motion for summary judgment. Thereafter, the superior court granted the motion for summary judgment, finding there was no triable issue of material fact regarding Arborworks’ vicarious liability because the plaintiffs were on a personal endeavor on the trip giving rise to the accident. Judgment was entered on behalf of Arborworks. 

This was the third dispositive motion won by the commercial automobile team of Paul Caleo and Lynn Rivera in the last year.

Keep the Defense Wins Coming!

Please send 250–500 word summaries of your “wins,” including the case name, your firm name, your firm position, city of practice, and email address, in Word format, along with a recent color photo as an attachment (.jpg or .tiff), highest resolution file possible (minimum 300 ppi), to DefenseWins@dri.org. Please note that DRI membership is a prerequisite to be listed in “And the Defense Wins,” and it may take several weeks for The Voice to publish your win.

DRI Annual Law Student Diversity Scholarship Applications Due June 30

Once again in 2021, DRI will award scholarships in the amount of $10,000 each to two successful law student applicants. The recipients will be announced at the DRI Annual Meeting in October. The goal of these scholarships is to provide financial assistance to two, worthy law students from ABA-accredited law schools to promote the DRI Diversity and Inclusion Statement of Principle.

These scholarships are open to rising (2021–2022) second- and third-year African American, Hispanic, Asian, Native American, LGBTQ+, and multiracial students. Incoming second- and third-year female law students are also eligible, regardless of race or ethnicity. Incoming second- and third-year law students who also come from backgrounds that would add to the cause of diversity, regardless of race or gender are eligible to apply. Students who are members of the American Association for Justice (AAJ), law school or law student members of AAJ, or students otherwise affiliated with or employed by AAJ are not eligible for DRI Law Student Diversity Scholarships. To qualify for this scholarship, a candidate must be a full-time student. Evening students who have completed one-third or more of the total credit hours required for a degree by the applicant’s law school also qualify for consideration.

Apply today or send the application to an eligible law student you may know. All applications are due by Wednesday, June 30. Learn more.   

Upcoming DRI Elections

Four Director Elected Nationally seats on the DRI Board of Directors, plus the offices of Second Vice President and Secretary–Treasurer, will be filled at the 2021 DRI Annual Meeting in Boston, October 13–16. To be considered for any position, a DRI member must first file a Declaration of Candidacy form. For more information, please contact Nancy Parz at DRI headquarters: nparz@dri.org or 312.698.6224. Declarations are due by July 1, 2021.

DRI Call for Nominees: Annual Professional Achievement and Service Awards

Do you have a colleague who deserves recognition for his or her professional contributions? DRI's Annual Professional Achievement and Service Awards celebrate and honor outstanding performance by state and local defense organizations, DRI law firms, and individual members, and we are looking for nominees.

These awards aim to recognize individuals for their achievements on behalf of the defense bar and the civil justice system or their involvement in community and public service activities that have a positive effect on society at large. Recognition enhances members’ personal growth and accomplishments, provides us all with role models, and strengthens members’ images in the legal and business communities and with the general public.

Please download a copy of our awards brochure and read how you can nominate a deserving individual, your organization, and its members. We encourage you to submit an entry for each award by July 1, 2021. Winners will be announced at the Celebration of Leadership on Friday, October 15, held in conjunction with DRI’s Annual Meeting in Boston, Massachusetts, from October 13–16, 2021. In addition, DRI will recognize award recipients in The Voice and through press releases to national and local media.

Platforms: Early in the pandemic, stay-at-home orders forced us all to learn how to use online collaboration tools. Zoom, WebEx, and Teams became part of our vernacular and we learned to meet each other via webcams and laptop screens. These tools are the mortar between the bricks of remote inspections.

Tools: A live view is the foundation of a remote inspection. The simplest application is a technologist in the field who points a smartphone camera at the object of interest and joins a Zoom call with an expert to provide a live view and receive guidance. More complex is a laboratory inspection that includes eight different camera views, three tethered instruments, and twenty-five remote participants following a detailed inspection protocol. The already popular online collaboration tools, including Zoom, WebEx, and Microsoft Teams, can connect remote users to virtually any type of inspection.

Digital cameras are used to capture hundreds to thousands of images of an artifact during the course of an inspection. Near real-time access to the photographs via the remote inspection platform is also an important feature. Because remote participants can view photos as they are taken, they can request specific photos or retakes.

In metallurgical exams, it’s not unusual to employ light microscopes, scanning electron microscopes (SEMs), and laser scanners to capture important information. These instruments are linked to computers that display the sample and include functions like image enhancement and tool overlays for measuring and quantifying features of the sample image. Connecting remote participants to these device screens provides a more comprehensive remote inspection experience.

Audio: A clear audio feed is critical. Don’t rely on the microphone in a laptop computer. There are much better audio solutions available. For example, many earbuds wirelessly connect to smartphones that can be connected to the remote inspection, providing convenient two-way communication with the participants. A good set of earbuds have a quality microphone that provides clear voice communication and good audio for the investigator. Many earbuds even have noise cancelling circuitry, which can be helpful when conducting an inspection in a noisy environment.

Online Courtesy: There is a certain amount of futzing required to get everyone connected and happy. It’s important to allow time to welcome participants on the runup period to a remote inspection. Log in thirty minutes in advance of the inspection start time to make sure the technology is working, and if no troubleshooting is necessary, you can have a nice pre-inspection chat with the other participants.

Living in the age of online collaboration has created a new set of social norms. No one wants to listen to someone crunching their morning cornflakes. Online courtesy includes muting your mic when not speaking, virtually raising your hand when you have a question or comment, and turning off your camera when engaging in something away from the inspection.

Sidebar Conversations: While most online collaboration platforms allow for private rooms, concerns about hot mic incidents are justified. It’s best to plan a space away from the inspection for sidebar discussions. Have your attending party leave the inspection and step away from your computer to strike up a cell phone conversation about something discovered or what’s next.

After the Inspection

The data collected during the inspection must be processed, analyzed, and combined with other data—and the story it tells discovered. Follow up reviews of CT data or the laser scan of an accident scene are important for all stakeholders. The same online platform used to conduct the remote inspection is an ideal place to gather for data reviews.

The Future of Remote Inspections

A high-quality inspection experience that reduces expenses is appealing to many clients. The time savings for remote attendees is even more considerable. An in-house expert can spend thirty minutes providing key information and then continue with their regular duties, rather than spending an extra day catching a flight back home. Engaging a broader community of stakeholders also improves and accelerates the journey to dispute resolution.

As Senior Director of ESi’s Technical Services, Charles A. Fox, Ph.D., believes that technology has the power to reshape how we experience and connect with the world. He leads ESi’s Visualization Team in producing groundbreaking visualizations and animations that can be used to demonstrate highly technical and difficult-to-understand concepts. During his 20 years in the litigation graphics industry, Dr. Fox has established a reputation for being singularly focused on client needs—and is often a “go-to” for demonstrative aids and exhibits used in high stakes litigation, where scientific accuracy is paramount and the ability to help jurors clearly understand what happened and why it can make or break a case.

The issue presented in this case is important to DRI and its membership. DRI members advise their broker clients on standards for selecting available motor carriers to transport property, and also defend these clients when they face lawsuits. The Ninth Circuit is the first court of appeals to speak on this issue, and if its reasoning is followed by other courts, brokers will be subjected to common law standards of “reasonableness” in all 50 states, any combination of which could apply to any given delivery route. Brokers will no longer be able to rely on federal agency standards for choosing a carrier, i.e., they will be required to go beyond choosing a carrier that has been allowed to operate by the Department of Transportation and obtained an adequate safety rating from the Federal Motor Carrier Safety Administration. This scenario will have a significant economic impact on the core services of brokers, a result Congress intended to prevent through the FAAAA.

In support of the petitioner’s position, DRI argued that a negligent selection claim against a broker is one that Congress intended to preempt by enacting the FAAAA because it is directly related to a broker’s core services. The purpose of the FAAAA is to prevent states from implementing various requirements that result in a patchwork of state laws, rules, and regulations, and instead, leave such decisions, where federally unregulated, to the competitive marketplace. DRI further contended that the statutory framework contemplates that brokers will rely on the federal agency’s ratings so that brokers can focus on properly providing their core services. Extending to brokers a duty to evaluate carriers independently—a duty that requires the broker to replicate the steps taken by the agency or, more likely, go beyond those steps—adds a layer of unnecessary costs to the system. Finally, DRI argued that the safety regulatory exception is inapplicable because a negligent selection or negligent hiring claim is not a safety regulation enacted as positive law; it is a retrospective, incrementally changing standard of common law developed by the courts. Moreover, even if a state law tort claim could be considered an exercise of a state’s police power, a negligent selection claim against a broker is not “with respect to motor vehicles” as specified in the plain language of the safety exception.

DRI’s amicus brief was written by Mary Massaron, a former DRI President, and Josephine DeLorenzo, of Plunkett Cooney in Bloomfield Hills, Michigan. 

For its DRI Cares project, the DRI Talc Litigation Virtual Seminar, held May 13–14, partnered with Safe Haven Family Shelter in Nashville. For more than 36 years, Safe Haven Family Shelter has led Middle Tennessee’s efforts to house, support, empower and advocate for families experiencing homelessness. Safe Haven is the premier shelter-to-housing program in middle Tennessee that accommodates families experiencing homelessness. Our housing first model, coupled with transformative services provides families with the resources and tools to achieve lasting self-sufficiency, stable employment and secured housing. Safe Haven has programs to help families find housing, work with landlords, focus on children and help parents find employment. During the 2-day virtual seminar, DRI Cares raised over $500 and 13 items from the Amazon wish list created specifically for this seminar. Thanks to everyone who donated.

The DRI Commercial Litigation Committee held its Super Conference on May 13–14, and in conjunction with the conference, DRI partnered with the Page Education Foundation in Minnesota to conduct a school supplies drive. In 1988, Diane and Alan Page created the Page Education Foundation to encourage Minnesota students of color to pursue post-secondary education. Justice Page, who spoke at the conference, is a retired Minnesota Supreme Court Justice and an NFL Hall of Famer (first defensive player to win the Most Valuable Player award!).

From its inception, the Page Education Foundation has offered financial assistance to students of color facing barriers to attaining their educational dreams. In turn, these young leaders return to their communities to serve as tutors and role models for elementary and junior high school students. Almost $16 million in Page Grants has been awarded to more than 7,700 Page Scholars. Page Scholars have given nearly 500,000 hours of volunteer service to communities across Minnesota, impacting the lives of over 50,000 children. The Foundation has a desperate need for school supplies for its participants, and we are asking DRI members to contribute to this worthy case. Even though the conference has concluded, it is not too late to donate. Learn more about the Page Education Foundation.

The school supplies should be shipped to the Foundation at the following address:

Page Education Foundation
c/o Amanda Moua, Executive Director
901 North 3rd Street, Suite 355
Minneapolis, MN 55401

The DRI Employment and Labor Law Committee always comes together, even when it cannot physically do so. Attendees of this year’s virtual seminar on May 27–28 collectively contributed $2,500—far exceeding their $2,000 goal—to Pipeline to Practice Foundation (P2P), a 501(c)(3) organization fostering diversity in the legal profession.

This unique organization works to build a more diverse pipeline by supporting both law students and young lawyers, and all donations directly support its programming. “Literally every dollar raised is invested into our students, and any amount—big or small—helps us provide critical programming to our students, such as an intensive law preview course, bar course support, and various soft skills training opportunities,” said P2P Board Member Matthew Iwamaye, Associate Director & General Counsel, RBC Law Group – Capital Markets. The organization also places participants in legal internships at Fortune 500 corporations.

“We were inspired to support P2P when Sandy Morris (Of Counsel at Valentine, Austriaco & Bueschel, P.C.), our #DRICares chair for the seminar, brought it to our attention. We love their vital mission and enthusiastic, innovative approach,” said Stacy Moon of Gordon Rees Scully Mansukhani, chair of the 2021 Employment and Labor Law Seminar. “The future of the legal profession looks bright.”

Three DRI regions—Central (Michigan, Ohio, West Virginia), Mid (Utah, Colorado, Nebraska, Kansas, Iowa, Missouri) and Mid-Atlantic (District of Columbia, Maryland, North Carolina, South Carolina, Virginia)—held a virtual Super Regional Meeting for their SLDOs in May. For their DRI Cares project, they supported the National CASA/GAL Association. The National CASA/GAL Association, together with state and local member programs, supports and promotes court-appointed volunteer advocacy so every child who has experienced abuse or neglect can be safe, have a permanent home, and the opportunity to thrive. Sally Erny, Deputy Chief Executing Officer, spoke to the group about ways for attorneys to get involved with the organization and how donations help children.

The three regions competed against each other for bragging rights to see which region could donate the most to the National CASA/GAL Association. The Mid-Atlantic Region led the way with donations of over $1,500, with the Mid Region and the Central Region donating over $1,000 each, for a total over $3,800. Thanks to everyone who donated!