The Voice^TM

Jasmina Basic (JB), Director of Communications at DRI: Hello and thank you for joining us today. DRI's 2023 Annual Meeting is coming to San Antonio on October 25th to 27th and you won't want to miss this flagship event of the year for the Civil Defense community. Join us to make lasting connections to first-class networking opportunities, expand your expertise in your practice area with cutting-edge education, develop your book of business, and more, all while enjoying the historic city of San Antonio.

In anticipation of the Annual Meeting, we're here today with one of our wonderful keynote speakers. Mara Liasson is going to give us a little taste of what you can expect from her session this fall. While you'll have to join us in Texas to get the full story, NPR national political correspondent Mara Liasson (ML) is an expert storyteller whose reports can be heard regularly on NPR's award-winning news magazine programs Morning Edition and All Things Considered. Since 1998, Liasson has been a contributor to Fox News, appearing on Special Report with Brett Byer and Media Buzz with Howie Kurtz. Liasson provides extensive coverage of politics and policy from Washington, D.C., focusing on the White House and Congress alongside reports on political trends beyond the Beltway. Each election year, she provides key coverage on the candidates and issues in both presidential and congressional races. Mara, thank you for joining us today. 

Mara Liasson: Thanks for having me. I'm looking forward to being in San Antonio with you. 

JB: Likewise, we're excited for the Annual Meeting.

Today, Mara will be interviewed by Jennifer Snyder Heis (JSH), a partner at Ulmer and Byrne LLP in Cincinnati, OH, and a member of DRI's Annual Meeting Steering Committee this year. Jenny has more than 20 years of experience defending manufacturers and distributors of pharmaceutical products and dietary supplements. She has represented these companies in complex litigation, including multidistrict litigation and consolidated state court proceedings, as well as individual cases throughout the country.

She focuses on developing effective legal strategies for the defense of multiple related lawsuits in multiple venues and is experienced in handling all phases of litigation, including trial. Her product liability experience also extends to a wide variety of other industries, including consumer products and construction and industrial machinery. She also counsels food and dietary supplement companies on regulatory issues, including labeling and risk management.

Jenny, thank you for leading our interview today. I'll turn it over for you to begin. 

JSH: Thanks, Jasmina. And thank you, Mara, for being here. This is really an honor for me to get to talk with you. So thanks very much. 

ML: Well, thanks for having me. 

JSH: I love that in your bio, you're described as an expert storyteller. Also, it wasn't in your bio for today, but you also, I know from following you, that you regularly report for NPR, but you also regularly contribute to Fox News. 

ML: And that's a story in itself. 

JSH: Yes, exactly. And so, my first question for you is when you're thinking about a story and how you're going to tell it, do you tailor it to your audiences, particularly in this somewhat polarized world that we're living in?

ML: Absolutely not. And that is the story of my appearances on NPR and Fox, who definitely have different audiences. But I don't say anything different depending on where I am. Now yes, being on television is different than being on radio. And on Fox, I sit on a panel, we discuss the news of the day, and on NPR, I do podcasts, I do two-way interviews with hosts. Sometimes I do more long form reporting and produce pieces. You know, the formats are slightly different, but the content of what I talk about is the same. And I sometimes say that I am the exception that proves the rule about media polarization, where, you know, the joke is MSNBC and Fox don't even cover the same natural disasters. But I've been, as you just said, I've been on NPR since 1985. I like to joke that I started when I was 10 years old, and I've been on Fox since 1998, and I don't say anything different, you know, either of those places. So I think that there is still my other story is that I believe there is still room for objective, straight-down-the-middle analysis. Not everyone has to be a pundit or an opinion monger. 

JSH: Well, we, I love that. And you know, we trial lawyers at DRI are always needing to tell stories to audiences that might not always be sympathetic to us or to our clients. What suggestions do you have for trial lawyers who are trying to persuade a judge telling a story too? We're trying to tell our story to persuade a judge or a jury or sometimes even the other.

ML: Well, that is, that is way above my pay grade. I don't really, I'm sure I could never tell you guys how to do your job, but I want to have full disclosure. My husband is also a trial lawyer, but he's a plaintiff's lawyer. So when I told the speaking agency about that, I think the guy wrote back LOL, they'll love that. But anyway, look, storytelling is the same, I think, whether you're in front of a courtroom, a judge, a jury, or an audience of radio listeners or TV watchers.

I mean, it should be compelling. It should have things in it for the audience to relate to. And it should first and foremost explain why they should care. Some of the things I report on seem really esoteric, like why should anyone care about a state Supreme Court race in Wisconsin? Or why should anyone care about some obscure thing called the independent state legislature theory that just got struck down by the Supreme Court today?

You have to explain it to people why it matters to their lives. And my beat, you know, I'm the national political correspondent. So I cover elections. I cover Congress, I cover the White House. And I often say that the big story of my beat right now is that it operates on two very different levels. One is completely normal. Who's going to be the nominee? Who's going to win the next election? What is Congress going to do about taxes or immigration or China or the environment, whatever. The other track is not normal. It's the “will democracy survive” track? And we know from polling that 69% of Democrats and Republicans think it might not. And how come? And why don't Americans understand the, well, let's put it this way, why don't so many Americans understand the most basic principles of how our democracy works? What separation of powers? What's checks and balances? What are all these institutions that we keep on hearing are under a lot of stress lately? You know, how are they faring and what is the rule of law mean, what does the independent judiciary mean? And obviously I don't have to tell you guys that, but so that's the part of my beat that's not normal because I normally didn't have to think about that or report on that. I just reported on what the various branches were doing with or to each other you know, on a daily basis. But I think we're in, as you said, very, very polarized times. We're in a hyper partisan moment and there are a lot of people who are questioning the basic fundamentals of our system and it's my job to try to explain to people why that's important. 

JSH: So since you posed the question, I'll ask you what's your impression? Will democracy survive?

ML: Yes, yes, yes. But democracy needs care and feeding and an engaged citizenry is what saves democracy. And people have to pay attention to democratic institutions. They have to participate in democratic institutions, and hopefully that would mean voting in every election and for every single race up and down the ballot. And also for advocating for simple reforms that could make our democracy stronger, like K-12 civics education. Like shared civic experiences, maybe mandatory national service with the military and nonmilitary option. There are lots and lots of things making it easier to vote but harder to commit voter fraud. I mean, there are a lot of things that we can do to make our democracy stronger, but yes, I do think it'll survive. I think that the American system of free market capitalism and little D democracy has been the best one that man ever devised. But it's not a static system and it needs care and feeding and occasional reform as it has had in the past. 

JSH: I love that. I love the K-12 civics education. 

ML: That disappeared for some. Well, there are a lot of reasons it disappeared because there's only so much time in the day and you have to teach STEM and you have to teach a lot of other things, and that just went by the wayside. But it's worth reviving.

JSH: Oh, I completely agree. I when I drive carpool with my kids, it's amazing the things that I hear.
 
ML: Oh, how about those late-night competitions? Understanding. Yeah, right. Well, how about those late-night comedy shows where they send the guy out onto the street with a microphone and they ask people, what are the three branches of government? Nobody has any idea.

JSH: No one knows.

ML: Yeah.

JSH: Well, speaking of three branches of government and sort of the not normal reporting that you've been doing lately, the Supreme Court has been recently encompassed in just a flurry of negative news, which is unusual for them. Usually, they're the bastion of integrity in our system, at least in my view. But there's been a leak. There's been all sorts of questions lately about money and trips influencing justices. Have you noticed that that kind of news has made an impact on Americans' confidence in our legal system and government as a whole?

ML: Yes, it has, and it's made a negative impact and it's really sad and bad. And the problem is that Americans are losing faith in all of their democratic institutions, and the Supreme Court was probably one of the last ones to dip as low as it did in terms of polling on how people feel about it. Congress has been in the toilet for a very long time, but the Supreme Court has sometimes had a liberal majority and sometimes has had a conservative majority. That's very different than Americans thinking it is a partisan institution. But now most Americans think that it is a partisan institution and I think that even though it doesn't seem like the Supreme Court justices want any kind of ethics rules that would be published that they would live by, I think a lot of people who care about the court wish they would because it would increase confidence in their impartiality. And I don't know where this is going. There's no law or institution or entity that can make the Supreme Court adhere to a certain list of ethics rules.

What to me was extremely interesting is the latest chapter, which of course is Sam Alito. Pre prebuttling, you could say the Pro Publica story about his trips, his fishing trip. And that just went under the headline to me of Supreme Court justices are not the best politicians. Because you know, to say there weren't $1,000 wines being served, oh my goodness, like who drinks $100 wines? And if I hadn't sat in the seat, it would have been empty. It was just incredible. Yes, it was a little bit of he does protest too much.

JSH: Exactly. Exactly. Are there any ways that you see for lawyers, you know, those of us who work in civil defense or in your husband's case, even on the plaintiff side, how we can work to improve sort of the general public's view of the court system and our government system as a whole?

ML: Well, I'm not sure about what lawyers can do, but I do think that it has to come from judges. It has to come from the top in this case. And that's why there's so much attention on the court, on the Supreme Court, because that's where it starts. And I think, I think John Roberts would have liked that to happen. But he's not as powerful as he used to be.

JSH: Yeah, I agree with you. I think John Roberts is struggling with wanting the court to move back to its prior stance, as you know the beacon of integrity and the legal system.

ML: It's calling balls and strikes was his famous description and nobody thinks they do that anymore. They think it's rigged and if you know...although look what the Supreme Court has done. I'm not a court reporter. You know you could have Nina Totenberg come and talk to you. But look what they've done. You know they've done things that people didn't expect from a really conservative court you know lately.

JSH: Right. 

ML: They've surprised some people.

JSH: Right. So one of those surprises was their recent decision rejecting an attempt to erode the Voting Rights Act. And anybody really thought that was going to go the way it did?

ML: No, especially because John Roberts has really been an opponent of a lot of the parts of the Voting Rights Act since he was probably 25 years old.

JSH: Exactly. Exactly. What other surprises or changes do you anticipate from the Supreme Court going forward?

ML: Well, I guess we got to wait for affirmative action, but that'll happen before I see you guys, right? JSH: Yeah.

ML: Yeah. Yeah. That'll happen before because I'm not seeing you till the end of October, right? Yeah. So I think that'll be a big one. And the question I have is what decisions? And again, I'm not a Supreme Court reporter, I'm the national political correspondent. But for me, the question is what decisions by the court will have political impact in 2024 like obviously Dobbs did?

I don't know if the affirmative action case, I think it'll have real world consequences because all these colleges are going to have to figure out what to do. But I don't know. Will it galvanize one group of voters more than another? I truly don't know the answer to that. The same thing with student loan forgiveness. I'm not sure about that, you know, but they'll definitely have real world consequences. But I don't know if they're going to have political consequences. The abortion ruling was clearly one of the most politically consequential rulings we've ever had. And by the way, I would put that under the normal part of my beat, having a debate about abortion. That's normal. That is not something that's threatening democracy. That is something people are now going to argue on the state level instead of the national level. It's going to cause--I think there is a silver lining in this for people who are pro-choice and didn't like the decision. I say to them, hey, look what's happening on the local level. People are paying more attention to state Supreme Court races. People are getting more involved in local politics because they realized that the Supreme Court is no longer in charge of this issue. Your state legislatures are. Your state Supreme Court justices are. Your governors are. So that's, you know, it's certainly has given a boost to civic energy and involvement on a local and state level.

JSH: Yeah, here in Ohio we have certainly seen that to be true with a lot of local engagement on the abortion debate and I'm glad you said that that is a normal part of your--

ML: Totally normal, totally normal.

JSH: --because I think so many people feel like this is new and different and kind of scary.

ML: I mean, it is, it is unusual that rights get taken away after they've been granted. I mean, historically the trend is the opposite, but there's nothing abnormal about a democratic country system arguing about whether abortion should be legal or not. And should it be legal with restrictions, should it be illegal with exceptions? I mean, that's a legitimate debate to have. That's not something that's going to destroy our democratic institutions.

JSH: Right. And it's wonderful to hear someone like you say that because I think all of us want, no matter what side you're on, I think people tend to take it to the extreme and make that one issue you know, "our rights are going to end," or you know "the states are going to take over," or who knows.

ML: Well you know it's because our politics are so apocalyptic and zero-sum that we take every single issue and say if my side loses, it's the end of America, you know, that's what's so wrong. My favorite New Yorker cartoon, which I will discuss in October, two dogs are sitting in a bar and one dog says to the other, "it is not enough that dogs must win, cats must also die." You know, I mean, we just like our opponents are not just somebody we disagree with. They're like enemies of our system. You know, they're fascists, they're communists, you know, if they win, you know, the whole country will be destroyed. So anyway, people have to stop that. We used to fight between the 50-yard lines, which actually was not a bad place for a democracy to be. Now we fight from the end zones and believe me, I'm not a sports fan, so I probably don't even have my metaphors right. But there's no middle anymore, is what I'm trying to say.

JSH: Yeah, it does seem like we could have a conversation and a debate on some middle ground and that would be far more productive. And just to bring it back to abortion again, there was a middle ground on abortion and 2/3 of Americans liked it. They wanted to abort. They wanted abortion to be safe, legal and rare, mostly legal with restrictions or mostly illegal with exceptions. However you want to look at it, you know whatever you think of 15-week or 20-week ban is and that polling has not changed.

JSH: What other key issues are you monitoring as we head into this presidential election year?

ML: Well, I think the economy obviously is always #1, even though we've witnessed something kind of weird, which is that the economy and the president's approval ratings are getting disconnected. They used to be completely connected. So the economy, immigration, crime, what else? You know, foreign policy always plays a very small role in national elections, but I think Ukraine is a is a big deal especially because so many Republicans are now moving away from feeling that we should be supporting Ukraine in a fight against Russia. But definitely immigration, crime, the economy, I think. I think abortion politics will still be around in 2024. I think gun violence could be. That really depends on if we keep on seeing this rate of mass shootings. Gun violence is one of those things where just like abortion, where the Republican base feels very strongly in one direction and they're the people who vote in Republican primaries versus the majority of public popular opinion, you know, which is which is different. So in that sense, Republican politicians in political incentives are misaligned the things they need to do support to get to win a primary is very different than what they need to support to win a general election. Unless you're in a safe red district.

JSH: Yeah. And some of those things have been key issues in as many elections as I can remember. Certainly certain places, certainly gun rights in certain places. Immigration in certain states is a bigger issue than others. Are there key differences you're noticing between this election cycle and prior ones?

ML: You mean in terms of those issues?

JSH: Yeah, in terms of other issues being important.

ML: Well, I think that well, first of all, I think a lot of these things depend on what's happening next year. In other words, like I said, will there still be a lot of mass shootings that reminds people about gun violence, and it allows one side to say we should have background checks, we should have an assault weapon ban on the other side. Just to talk about the Second Amendment, immigration, you know what's happening at the border, we've seen immigration really subside. Certainly it did that before the 2018 elections. Crime, that depends on what's happening in cities around the country. I think that the this is an issue that we haven't had before, but age is a huge issue. Right now, you'd have to say the two likeliest nominees are Trump and Biden, and both of them are old and both of them are seen by a majority people as not the first choice that they want to have running next year. Biden especially has terrible numbers on this, on his ability to, you know, his mental acuity, his ability to do the job at age 82, which is what he would be. So that's something that we really haven't seen before. And it's interesting to me because Trump is 77, I think, and he is overweight. There really are no two ways about that. But he does not have a quote age problem. I think because he comes off as vigorous and aggressive and people don't mention that as a problem with him. Now they have other problems. You know, swing voters think he's too extreme and he's not focused. He's focusing on his own problems too much and not the country's, but he doesn't have an age problem. But that's going to be a huge issue in the campaign. Huge.

JSH: Yeah. So it's interesting that you mentioned age, I feel like we hear more and more about age and generational differences, not just in in the context of a particular candidate, but in terms of, you know, people in their 20s don't feel like people in their 50s have the same issues or can even understand the issues that are relevant to a younger generation. How much does that play a role in sort of the way people vote or the way the politicians are framing their issues?

ML: I think that there have always been generational politics. I think that we do see a big split in terms of the partisan affiliations of different age groups. There's no doubt that younger voters, and this is the thing that I can never understand. How can a party, the Democratic Party, do so well with younger voters when all of their leaders are aged? I mean that is just, I don't, I don't get that, you know it's amazing to me. But they consistently do a lot better with younger voters, older voters who came of age during the Reagan years tend to be more conservative and that I don't think that's necessarily new. Certainly we went through the 60s and 70s definitely during the Vietnam War where generational politics were huge.

JSH: Right. While we're talking about the young folk, there's been so much buzz this year about artificial intelligence and tools like ChatGPT, and how they're influencing everything everywhere. How do you see those tools shaping the field of journalism over the next decade?

ML: Well, I'm glad I'm old. That's all I can say. So I don't have to. So I don't have to be replaced by a bot. Okay. So, I think that they have the ability to take over a lot of basic writing jobs, and that's scary to me. A much more immediate concern is whether AI-generated what we used to call deep fakes are going to have a play role in the 2024 elections. We've been waiting for them to come online and now they're here, and how are we going to develop the ability to spot them, to label them?

In Europe they're talking about digital watermarks for anything that's generated by AI, so you know if you're looking at the real thing or something that's fake. I think that, you know, AI has the potential to supercharge disinformation and it could play a really big and negative role in the elections. In terms of journalism itself, all I can say is I hope that human beings continue to generate journalism content forever and ever.

JSH: Well, I can say the same thing about humans and practicing law, because it's certainly being heralded as something that can really change, be a game changer in our practice, and as much as it might be a helpful tool, I'm with you. I hope that humans continue to have the primary role.

And switching gears for a second, I wanted to ask you what is your view of the balance between corporate accountability and defending businesses in the face of regulatory challenges? It's kind of getting back to that civics question, but from a corporate standpoint.

ML: That's really that's a question that I haven't given a lot of thought to. I would hope as a citizen that all our corporations are very responsible, but that's why we have government, because those are the two giant forces in our society, business and government. And you want to find the right balance. You want enough regulation so people are safe, but you don't want too much so business is squelched and the economy suffers. I mean, that's kind of been the age-old you know, hunt for the right balance and equilibrium. What I'm also kind of interested in is the fact that the Republican Party is changing its approach to business and corporations. And instead of wanting pure free market capitalism where you have the lightest possible regulatory hand, now it's okay to punish Disney because they were on the wrong side of your LGBTQ bill. And that's something.

And I think in Congress you find more and more conservative Republicans who are more willing to use the heavy hand of government to regulate business. And that makes me wonder, as a political journalist, where do corporations go? Especially because now Republicans, at least in the House, represent a majority of low-income districts and Democrats represent a majority of the highest-income districts. So as the Republican Party becomes more and more a blue collar, non-collar, non-college educated party, where does that leave corporations and big business? I don't know how much longer the Republican Party can say it's a blue-collar party and still vote for tax cuts for the rich and not for the middle class or you know that we now have Republicans in Congress that want the government to send cash payments to parents because they think that that's a good thing, that this is just a whole new interesting debate. Yeah. The two parties are really in flux on this and that's what I'm interested in. Where does this leave the corporate community? The Republican Party wants to punish the Chamber of Commerce through the Business Roundtable if they are, you know, seem to be too, well, now the word is woke.

Yeah. So really, lots and lots of things are changing and I'm very interested in watching that.

JSH: Yeah. It really is a role reversal from describing what is a Republican when I grew up.

ML: Right.

JSH: What is a Republican now? I feel like maybe the Democrats haven't changed as much. And so it'll be interesting how they react, but not as much.

ML: But now you also have a whole different view of trade and immigration. Republicans used to be the party of immigration. Well, we have a huge labor shortage in this country. It's even a labor shortage crisis in this country. Well, the simplest answer to that, or one of the most obvious ones, is to reform our immigration system so we get more legal immigrants, make sure there are no illegal immigrants, but business can't survive without immigration. I mean the story that I read recently, which was amazing in Florida after they passed this, very tough immigration bill, you had some of the Florida Republican legislators go and speak to immigrant groups to say please don't move to another state. We really need you, don't listen to what we just did in the legislature. So, you know, a lot of these issues are now up for grabs.

JSH: Yeah, it'll be interesting to see how it goes.

ML: Yep.

JSH: What is the best advice you've gotten during your career?

ML: Wow, that is a really good question. Well, I can this seems a little parochial, but Cokie Roberts, who was my mentor, and she was a wonderful, wonderful, wonderful journalist and a human being, and she passed away. She told me, just keep your head down and keep filing. Don't pay attention to office politics. Don't worry about what's happening, like in your workplace so much. Just focus on what you're covering and keep going. And that's what I've done.

JSH: And would you-I think-that's directly applicable to good career advice for attorneys, just focus on your cases and not all of the distractions on the side. So I think that would that's really nice one for our audience. Is there anything else, any other career advice that you'd share with our audience of defense attorneys and in-house counsel.

ML: Geez, I don't know. First of all, I don't know-except for my husband who has his own firm-I don't really know, the law seems extremely demanding and it asks a lot of you, and I would not presume to give you career advice in a field that I don't know. Firsthand I would just say in general just keep your eye on the horizon on the long term, think about where you want to be in 5 or 10 years instead of tomorrow and that I think has always been helpful for me.

JSH: Speaking of sort of a demanding career, yours is also I think from my outside the journalism world perspective--

ML: Except for I don't have to bill hours.

JSH: Well, I mean that is the worst of it all. But, you've been doing this demanding job at a very high level for a while. What keeps you going?

ML: Oh, because I'm so interested in it. I mean just the subject matter and I really care about American democracy and I'm really interested in how a democratic society solves problems. And that, to me is not abstract at all. And I have just never lost interest in what I'm covering. And to NPR's credit, they've always--I've done a lot of different things for them. I've covered Congress. I've covered the White House now, I've been covering politics for, you know, over 20 years. They've always had something really interesting for me to do, and I'm really grateful.

JSH: So last question, as someone who's passionate about their job but and super well-educated and always busy, what is someone like that binge watching these days?

ML: Well, someone like that is wishing she had time for binge watching. But I'll tell you what I want. I can say this, I'll tell you what I want to binge watch. First of all, I started binge watching Ted Lasso and I think I did two seasons and I want to do the rest. I can't remember. I don't even know how many there are now, but I want to watch The Bear. The thing about the restaurant, I want to binge watch that.

JSH: Well, I will tell you I finished Ted Lasso and no spoilers, but it the end doesn't disappoint even though I'm sad it's over.

ML: OK, good. So how many how many seasons were there all together?

JSH: Three.

ML: Great. So I'm only missing one. OK. Yes. And I really like that.

JSH: I recently heard about that one. So, yeah, I'm gonna have to look into it. Well, Mara, thank you so much for your time. And we can't wait to hear more from you in San Antonio in October. Great seeing you then.

ML: Yep, Me too. See you then. All right. Thank you.

JSH: OK, take care. Bye.

ML: Bye.

The DRI Center for Law and Public Policy (the Center) recently filed an amicus brief in the United States Supreme Court addressing judicial treatment of authority sought to be exercised by federal administrative agencies.  The case is Loper Bright Enterprises, et al. v. Gina Raimondo, Secretary of Commerce, et al., No. 22-451. 

The issue is whether an administrative agency, the National Marine Fisheries Service, has the authority under relevant legislation to implement an industry-funded monitoring program applicable to certain fisheries. Specifically, the agency’s regulation would require fishing boat owners to carry on board, and pay the salaries of, monitors hired to collect data on fishing conditions. The agency estimated the cost to the owners would reduce annual returns by about 20 percent. 

Although the legislation did not expressly authorize the agency’s fishery-funded monitoring program, the D.C. Circuit nonetheless sustained its validity.  It did so on the basis of the “Chevron doctrine.” That doctrine limits judicial review of an agency’s actions to determining whether Congress has spoken clearly on a particular issue and, if not, then deciding whether the agency’s action is reasonable. The petitioners in the Supreme Court, family-owned fishing companies, argue against the regulation by seeking to overturn the Chevron doctrine. 

The Center’s amicus brief was filed in support of the petitioners but takes the position that the agency’s authority should be tested under the “major questions doctrine” rather than the traditional Chevron doctrine. Under the major questions doctrine, a court first looks to determine whether the agency’s action is “extraordinary,” and, if so, whether Congress has provided clear authorization. In the absence of clear authorization, the agency’s action is deemed invalid. 

DRI members Melinda Kollross and Don Sampen of Clausen Miller, P.C., in Chicago drafted the amicus brief, which was filed on July 13, 2023. Ms. Kollross is a member of the Center’s Amicus Committee. 

Center Joins a Coalition Brief Seeking to Preserve Appellate Bond Caps 

The DRI Center for Law and Public Policy recently joined a coalition amicus brief in the Colorado Supreme Court—filed by the U.S. Chamber of Commerce and also joined by the Colorado Association of Defense Lawyers, among others—in In Re Antero Treatment LLC. The case involves a constitutional challenge to a statutory appeal bond cap enacted by the Colorado legislature, which limits the amount of an appeal bond to $25 million regardless of the size of the verdict.   

Appeal bond caps ensure that businesses can seek meaningful appellate review of blockbuster verdicts instead of being pressured into settling, and the Colorado Supreme Court’s decision could set a precedent that is used in other states. The brief argues, inter alia, that preserving litigants’ access to the right to appeal adverse judgments is an important matter worthy of legislative attention and that unlimited appeal bond requirements threaten defendants’ right to appeal. 

The brief was authored by DRI member Lee Mickus of Evans Fears & Schuttert in Denver. 

Introduction 

Safety intervention efforts can involve attempts to influence how people use products or interact with their environment via signs and labels that convey safety information. A substantial body of research has investigated the questions of whether and how safety signs and labels can lead to changes in behavior and reductions in accidents and injuries. A recent review of the latest research indicates that a variety of methodologies have been used to study compliance with safety information. These methodological differences may help explain seemingly contradictory findings regarding the impact of warnings design aspects on behavioral compliance. 

Behavioral Compliance with Safety Signs and Labels 

Scientific research indicates that in order for safety-related information to be a mechanism of change in human behavior, multiple conditions must be met. First, an individual must receive and process the safety- related information, which requires them to seek out, notice, attend to, consume, and understand the content of that information. Numerous factors related to characteristics of the individual, the environment, the task, and the safety sign or label can affect whether and how these processes occur. Ayres et al., 1989.  For example, the extent to which an individual is alert, attentive, and/or seeking information can impact the likelihood that they seek out, notice, and attend to safety-related information. E.g., Ayres et al., 1989; deTurck & Goldhaber, 1988. Similarly, familiarity with a product, environment, or task can impact whether and how safety messages are received or filtered out. E.g., Ayres et al., 1989; Otsubo, 1988. Factors related to when and where safety information is presented, as well as the content of that information, can also influence whether and how safety information is received and understood. Ayres et al., 1989. 

Assuming all of these events and processes take place, the user must still be willing to modify their behavior and must succeed in appropriately modifying their behavior in accordance with that information. Ayres et al., 1989.  Numerous factors can influence motivation and ability to change behavior, such as, but not necessarily limited to, the perceived consequences or risk, social factors (e.g., conformity), the perceived cost of compliance, and memory. E.g., Ayres et al., 1989; Dingus et al., 1991; Friedmann, 1988; Wogalter et al., 1989. In summary, failure to satisfy one or more of the above-noted conditions reduces the likelihood that an individual will successfully modify their behavior to comply with safety information; as such, the mere presence of safety signs and labels does not appear to reliably increase compliance or reduce accidents and injuries. 

Warnings Research 

As noted above, a rather substantial body of research has investigated the questions of whether and how safety signs and labels are effective in changing behavior and reducing accidents and injuries. For a review, see McCarthy, et al., 1984; DeJoy, 1989; Cox et al., 1997; Ayres, et al., 1998; Silver & Braun, 1999; Rogers, Lamson, & Rousseau, 2000; Kalsher & Williams, 2006; Hancock, et al., 2020. Several review efforts that have attempted to identify trends and draw conclusions from this literature have noted a number of methodological differences in this body of research. Ayres et al., 1992; Ayres et al., 1998; Diebol et al., in press. As discussed below, these methodological differences may have important implications for conclusions drawn regarding the effectiveness of safety information in changing behavior. For example, some studies can be considered contrived-environment experiments; here, the research setting is artificial (often conducted in a laboratory), the task is defined by the experimenter, and participation in the research is imposed such that participants are aware that their behavior is being observed. Ayres et al., 1992; Ayres et al., 1998; Diebol et al., in press. In these types of studies, participants may be aware of which product is of interest to experimenters (i.e., product-obvious experiments), or participants may not be aware that product evaluation is involved (i.e., product-disguised experiments). Ayres et al., 1992; Ayres et al., 1998; Diebol et al., in press. Other studies can be considered real-world studies; here, participants select their own behaviors in accordance with their goals (i.e., they are not instructed how to behave by the researchers) and are unaware that they are being observed. These studies may involve experiments set up by researchers, or observations of responses to situations not created by the researchers. Ayres et al., 1992; Ayres et al., 1998; Diebol et al., in press. 

Additionally, studies can substantively differ in terms of how compliance is measured. For example, some studies have measured behavioral compliance directly by observing the behavior of individuals in response to safety signs and labels. However, some researchers have suggested that intentions can reliably predict behavior, (Silver & Braun, 1999) resulting in a trend of substituting measures of intention and/or predicted likelihood of compliance for measures of actual behavioral compliance in studies published since 1998. Diebol, et al., in press. Others have shown that intentions/predictions of compliance with safety signs and labels are not consistent with behavioral compliance, calling into question the validity of using such measures to infer changes in behavior. Frantz et al., 2005. This inconsistency in methodology has continued despite a lack of empirical evidence establishing that intention and predicted likelihood of compliance are accurate or reliable predictors of real- world behavioral compliance, particularly in research specific to safety signs and labels. Diebol et al., in press. 

Most of the research conducted on compliance with safety signs and labels has used laboratory experimentation as the methodology (i.e., contrived-environment experiments), in which participants knew that they were participating in a research study. Ayres et al. 1998; Diebol et al., in press. Far fewer studies have examined real-world compliance through real-world experiments or observations, in which the self-selected behavior of unaware participants was observed. Ayres et al., 1998; Diebol et al., in press. Furthermore, measures of intention and/or predicted likelihood of compliance have often been substituted for measures of behavioral compliance. Diebol et al., in press. These differences in study design may have important implications for conclusions drawn regarding research on compliance with safety information. Notably, varying levels of behavioral compliance and predicted likelihood of compliance with safety information have been demonstrated under highly controlled (i.e., contrived-environment) conditions, which include both laboratory and survey research. Ayers et al., 1998. However, studies examining real-world, self-selected behavior of participants who are unaware that they are being observed have not reported substantial and/or unequivocal behavior changes associated with warning labels or signs, nor have they concluded that warnings design aspects had a significant impact on behavioral compliance. Ayres et al., 1998; Diebol et al., in press.

Implications for Claims 

There have been frequent allegations in the areas of product and premises liability that a product is defective, or that an owner or operator of a premises breached its duty of care, by virtue of either failing to provide safety signs or labels or by failing to include specific content or formatting in existing safety signs or labels. In contrast, allegations can also center on claims that the provision of safety-related information through signs and labels is insufficient to reduce injuries or accidents and that hazards must be designed out or guarded against instead. Analyses of such issues can benefit from examination of the product or premises in question, as well as characteristics related to the involved individual, the task being performed, and any existing safety signs and labels. Furthermore, when evaluating scientific literature used to support claims that warnings either are, or are not, effective in evoking changes in behavior, consideration should be given to the reported methodology used to study and measure behavioral change. 

Closing Remarks 

In conclusion, despite a substantial body of research on compliance with safety signs and labels, an apparent discrepancy remains regarding the effectiveness of this safety-related information in changing behavior and reducing accidents and injuries. Namely, under highly controlled conditions, some levels of behavioral compliance with safety information have been observed, but similar findings have not been reliably and unequivocally demonstrated in real-world studies of behavior. A recent analysis of methodological differences between studies has helped clarify the nature of the differences in these findings. Relatively few studies have evaluated behavioral compliance in real-world settings, and those that have done so have not reported unequivocal behavior changes associated with warning labels or signs and have not concluded that warnings design aspects have a significant impact on behavioral compliance. Given this discrepancy in methodology and other findings in the literature, it appears that there is still no scientific basis for accurately or reliably predicting the effects of various manipulations of warnings design aspects on behavioral compliance in real-world contexts. Accordingly, responses to failure-to-warn claims can benefit from analyses of characteristics related to the individual, environment, task, and safety-related information, as well as an evaluation of the methodology of scientific literature used to support claims related to the effects of warnings on behavior. 

References 

Ayres, T. J., Gross, M. M., Wood, C. T., Horst, D. P., Beyer, R. R., & Robinson, J. N. (1989). What is a warning and when will it work? In Proceedings of the Human Factors Society Annual Meeting (Vol. 33, No. 6, pp. 426-430). Sage CA: Los Angeles, CA: SAGE Publications. 

Ayres, T. J., Gross, M. M., Horst, D. P., & Robinson, J. N. (1992). A methodological taxonomy for warnings research. In Proceedings of the Human Factors Society Annual Meeting (Vol. 36, No. 5, pp. 499-503). Sage CA: Los Angeles, CA: SAGE Publications. 

Ayres, T. J., Wood, C., Schmidt, R., Young, D., & Murray, J. (1998). Effectiveness of warning labels and signs: An update on compliance research. In Proceedings of the Silicon Valley Ergonomics Conference & Exposition (Vol. 199, p. 205). 

Cox, E. P., Wogalter, M. S., Stokes, S. L., & Murff, E. J. T. (1997). Do Product Warnings Increase Safe Behavior? A Meta-Analysis. Journal of Public Policy & Marketing, 16(2), 195–204. 

DeTurck, M. A., & Goldhaber, G. M. (1988). Consumers' information processing objectives and effects of product warnings. In Proceedings of the Human Factors Society Annual Meeting (Vol. 32, No. 6, pp. 445-449). Sage CA: Los Angeles, CA: SAGE Publications. 

DeJoy, D. M. (1989). Consumer product warnings: Review and analysis of effectiveness research. Proceedings of the Human Factors Society Annual Meeting, 33(15), 936-940. 

Diebol, J. K., LoVoi, K., & Coelho, C. J. (in press). Behavioral compliance with safety signs and labels: An update on warnings research (1998-2022). In Proceedings of the Human Factors Society Annual Meeting. 

Dingus, T. A., Hathaway, J. A., & Hunn, B. P. (1991). A most critical warning variable: Two demonstrations of the powerful effects of cost on warning compliance. In Proceedings of the Human Factors Society Annual Meeting (Vol. 35, No. 15, pp. 1034-1038). Sage CA: Los Angeles, CA: SAGE Publications. 

Frantz, J. P., Young, S. L., Rhoades, T. P., & Wisniewski, E. C. (2005). Predicted versus actual response to warning signs and labels: Examining the role of ANSI Z535 features. Proceedings of the Human Factors and Ergonomics Society Annual Meeting, 49(19), 1785-1789. 

Friedmann, K. (1988). The effect of adding symbols to written warning labels on user behavior and recall. Human Factors, 30(4), 507-515. 

Hancock, P. A., Kaplan, A. D., MacArthur, K. R., & Szalma, J. L. (2020). How effective are warnings? A meta-analysis. Safety Science, 130, 104876. 

Kalsher, M. J., & Williams, K. J. (2006). Behavioral compliance: Theory, methodology, and results. In M.S. Wogalter (Ed.), Handbook of Warnings (pp. 335-354). CRC Press. 

McCarthy, R. L., Finnegan, J. P., Krumm-Scott, S., & McCarthy, G. E. (1984). Product information presentation, user behavior, and safety. Proceedings of the Human Factors Society Annual Meeting, 28(1), 81-85. 

Otsubo, S. M. (1988). A behavioral study of warning labels for consumer products: Perceived danger and use of pictographs. In Proceedings of the Human Factors Society Annual Meeting (Vol. 32, No. 9, pp. 536-540). Sage CA: Los Angeles, CA: SAGE Publications. 

Rogers, W. A., Lamson, N., & Rousseau, G. K. (2000). Warning research: An integrative perspective. 
Human Factors, 42(1), 102-139. 

Silver, N.C., & Braun, C.C. (1999). Behavior. In W.S. Wogalter, D.M. DeJoy, & K.R. Laughery (Eds.), Warnings and Risk Communication (pp. 245-262). Taylor & Francis. 

Wogalter, M. S., Allison, S. T., & McKenna, N. A. (1989). Effects of cost and social influence on warning compliance. Human Factors, 31(2), 133-140. 

“Colleagues are a wonderful thing – but mentors, that’s where the real work gets done.”—Junot Diaz 

This fall, across the country, a new class of lawyers will be joining the ranks of the legal profession. Their formal classroom education behind them, these fresh arrivals will now have to contend with the challenges of a new career and a new way of life. Different lessons will have to be learned, but in life there are no books that contain all the right answers. In the legal profession, one solution to this quandary is to search and find a mentor. Having a person with experience to serve as a guide will alleviate going it alone. A mentor can point out where the pitfalls are and how to avoid them.  

A mentor is an experienced lawyer who will pass along guidance and advice to another less experienced attorney. Through this collaborative effort, a mentee can develop new skills and abilities. The mentor can also assist the mentee in setting career goals and provide suggestions as to how to accomplish these initiatives. The ultimate goal of the mentorship partnership is to create a forum where both mentor and mentee can exchange ideas, thoughts, and suggestions in a confidential environment. The best lawyers are ones engaged in life-long learning, and one means of accomplishing this feat is by entering into a mentorship relationship.  

Some of the most notable members of our profession have had the assistance of a mentor. Abraham Lincoln had John Todd Stuart; Louis Brandeis had Oliver Wendell Holmes, Jr.; and Barack Obama had Michelle Robinson. Thus, if you want to achieve a satisfactory level of success in your legal career, working with an experienced lawyer can be of an enormous benefit. The question then becomes how to find the right mentor. 

Selecting the right mentor can take time, and this effort may also involve some trial and error until you discover the right one. As your career evolves, you may also find the need to have different mentors. While having a mentor from your own office may be convenient, it may be more beneficial in the long run to have a mentor who is not employed in the same office. The objectivity of someone from the outside may provide insights which may not be apparent to someone from within, particularly as to issues involving your colleagues and the inner workings of your office. In choosing a mentor, it is important to set forth your expectations. Equally important for the mentorship to be effective, both mentor and mentee need to be intentional in their participation and hold each other accountable. Ultimately, select the mentor who will best suit your needs and will be able to address the concerns you may have, whether law-related or not. The mentor you select should be someone who can advise you on both legal as well as non-legal activities. 

One of the lessons rarely taught in law school is how to effectively navigate between a professional and personal life. In other words, prior to practicing law, we never really learn how to maintain balance between these two facets of our existence. In fact, as members of the bar, we are indoctrinated with the notion that fealty to the law requires we burn the candle at both ends. In the words of Justice Joseph Story, “[The Law] is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage.” Upon entering the profession, we soon discover that the demands of practicing law can be overwhelming at times, with the constant pressure of having to meet deadlines. The amount of work seemingly is never ending. The long and arduous hours can leave no time for a life outside the office. We often also sense a lack of control over our choices and schedules, which seem to be directed and dictated by clients, judges, and partners. In many instances, lawyers strive to address the needs of others, yet at the same time dismiss their own. How do we achieve balance in this scenario and at the same time fulfill our ethical and legal obligations as officers of the court and counselors of the law? How do we accomplish the heroic feat of saving the day for our client without ruining our day at home? One source which can provide direction and guidance is the mentor, particularly one who has dealt with the stress, anxiety, and depression which sometimes can result from engaging in the practice of law.  A mentor may not have all the answers but through their past experiences and observations can at least provide the less experienced attorney with the necessary guidance to avoid the mistakes of others who have come before them.   

Lastly, there are other intangible benefits to the profession in becoming involved in a legal mentorship relationship. While the newest members of our profession can derive an advantage from participating in a mentorship relationship, note that regardless of where you are in your legal career, you can always learn from someone with more experience and a different perspective from your own. Furthermore, by being involved in a mentorship, the mentor can receive a sense of satisfaction from giving back to the profession. In this ever-evolving world, the mentor can in some circumstances become the mentee. In the words of Michelle Obama, “One person might be senior and be wiser and have more experience, but I’ve learned a lot from the people I mentor.”  

Through participation as a mentor, an attorney can lend their voice to future generations of lawyers.  Given the current concern regarding the increase of incivility and lack of professionalism in the legal profession, the value and impact of a mentorship is indeed priceless.  

Justice Jesse G. Reyes is the current Executive Chair of the Illinois Appellate Court, First District. 

“You can all go to hell, and I will go to Texas.” 

Davy Crockett’s famous quote originates from his time as a Tennessee Congressman, when he promised if they did not reelect him, he would leave the state. As history recounts, Davy left Tennessee in November and arrived in Texas the following January. And now you can follow the “King of the Wild Frontier” to San Antonio when you attend DRI’s Annual Meeting on October 25 to 27. The 2023 Annual Meeting is slated to be one of the best and biggest DRI events in several years. Your attendance provides you with the opportunity to not only reconnect with established relationships but also to expand your connections by networking with nearly 700 civil defense lawyers and in-house counsel. 

I understand the limitations that many in-house counsel have with respect to budgets and travel restrictions, but I encourage you to attend. To help you make your decision, I have created a Top Ten List of reasons why you should attend:

1. Meet Keynote Speakers Connie Podesta, Hon. Jeffrey S. Sutton and Mara Liasson
2. Networking Opportunities/Meet Your Zoom Buddies in Person
3. Learn about the Latest in Legal Technology and Legal Operations
4. Learn about the Evolving Legal Department
5. Increase Your Skills and Knowledge
6. Build Better Partnerships with Outside Counsel
7. Satisfy Continuing Legal Education Requirements
8. Connect with Experts in Your Industry
9. Stay Up to Date with Industry Trends and Advances
10. Spend an Evening at the Alamo 

Attending the Annual Meeting gives you the opportunity to share knowledge and discuss industry trends. It offers an excellent opportunity for anyone in the industry to develop their skills and knowledge. In-house counsel can benefit from insight coming from the outstanding presenters at the Annual Meeting. 

Now that I have convinced you of the outstanding benefits of attending the Annual Meeting, I would like to provide some advice on how to convince your General Counsel to permit you to attend. First and foremost, demonstrate the benefit to your practice group and the larger business enterprise of your attendance. Emphasize the ways you'll earn continuing education credits for attending, and don’t underestimate the benefits of peer networking and partnership-building opportunities. Specifically, strong partnerships between corporations, insurers, and outside counsel are critical to your and your business’s success. The Annual Meeting offers the opportunity for direct access and open lines of communication to nurture these partnerships. You can also learn more about DRI’s Counsel Meeting Program, which was created to facilitate these opportunities. This program offers a turn-key solution allowing companies and insurance carriers to meet with their outside counsel while attending a DRI seminar. Combine your attendance at the Annual Meeting with a Counsel Meeting to optimize your trip. At the same time, take advantage of the opportunity to connect with other corporate counsel and, in particular, other members of the Corporate Counsel Committee. The Counsel Meeting provides a place where corporate attorneys can connect and discuss new developments in the law as well as issues related to leadership, work-life balance, and more that cut across our diverse practice areas. And the good news is the Counsel Meeting won’t cost you anything. Hosting a meeting can give you access to complimentary meeting space, including AV equipment and coffee breaks. Even if you decide not to host a Counsel Meeting, attendance at the Annual Meeting is a great way to meet other in-house counsel, experience excellent CLE, and get more involved in the Corporate Counsel Committee. And you’ll be doing it all in the great City of San Antonio with its amazing history and attractions such as the Alamo and the riverwalk.   

Michael K. Callahan is assistant general counsel-litigation at Eversource Energy in Boston, Massachusetts. He is the Second Vice Chair of the DRI Corporate Counsel Committee

The DRI Center for Law and Public Policy (the Center) is the voice of the defense bar. While the plaintiffs’ bar has shown an impressive ability to coordinate efforts in driving up settlements and verdicts, the Center is organizing a well-informed, well-organized pushback to support our economy. The Social Inflation Task Force, as an arm of the Center, is particularly determined to analyze plaintiffs’ trial tactics consistently and develop strategies to rebalance the judicial playing field. In January 2023, the Social Inflation Task Force published a white paper addressing the state of social inflation and how it affects our daily practice.   

While defense attorneys and their clients have wrestled with unreasonable demand letters for years, the plaintiffs’ bar has organized itself to increase tension surrounding demand letters. Plaintiffs’ counsel—knowing that a microscopic percentage of cases are actually tried to verdict—increase presuit and pretrial demands to maximize their payout. A 2019 book written by and for the plaintiffs’ bar, How to Win Top-Dollar Settlements, recommends, among other things, that plaintiffs’ counsel exploit the perceived conflict of interest that can arise between the insurer and insured, including those conflicts that arise from policy limit demands and multiclaimant situations. Two strategies for defusing the tripartite bomb are (1) improving initial communications with the insured, and (2) investing defense dollars earlier in the case. 

First, defense counsel needs to address the tripartite conflict head-on in initial client meetings. While honoring ethical obligations to the insurer and insured, defense counsel is often justified in prophesying to the insured what the plaintiffs’ bar is up to when it makes a policy limit demand. Instead of personally advising the insured how to handle the demand, defense counsel often should paint the horizon and recommend that the insured lean on personal counsel (legal impact) and insurance brokers (impact on future coverage) to provide key advice that trial counsel typically cannot provide. Indeed, many times the insurer and insured’s interests are aligned, and a strong uniform defense is mutually beneficial.  

Second, defense counsel can encourage clients and insurance carriers to mount an early attack, stocking their arsenal with admissible evidence that justifies a strong negotiating position. If the arsenal is sparsely stocked, the defense will be sparsely prepared to take hard positions at an early mediation. A thorough initial assessment and strong strategy from the beginning sends a signal to the plaintiffs’ bar that (1) their intimidation tactics will not control the negotiation, and (2) their investment in the case may yield no return. After all, most rational investors will resist sinking money into a high-risk, low-yield return.  

Along these lines, remember that the plaintiffs’ bar roots for itself because every advertised nuclear verdict raises the settlement expectation in future cases. The advertised settlements and verdicts not only recruit clients but also influence potential defendants and jurors. John C.S. Pierce, et al., Social Inflation – Legal System Abuse: Observations and Solutions to Support the Right to Fair and Impartial Dispute Resolutions, DRI: Center for Law and Public Policy (Jan. 2023). When defendants unduly confuse potential verdicts with unlikely verdicts, they overpay in settlements. At this, the entire plaintiffs’ bar rejoices—and further ratchets up settlement demands in future cases. One antidote for this phenomenon is to communicate more openly about defense wins—and to root for the defense as a whole. Three prerequisites to this antidote are (1) fighting more, (2) winning more, and (3) communicating more. 

When the plaintiffs’ bar sees that the defense morale has increased—and that the defense’s undue fear is displaced by a sane appreciation of risk—they will more carefully consider where they invest their time and money.  

With this said, the Social Inflation Task Force encourages defense counsel to challenge the plaintiffs’ bar’s self-sustaining advertising efforts creatively. Study their advertisements. Pay attention to the primary, intentional messaging and highlight their tactics to fellow defense counsel and clients.  For an excellent primer on organic advertising and intentional advertising, see Social Inflation Task Force member Shari Belitz’s recent LinkedIn post with a slide carousel titled, “What Is Pre-trial Publicity?” 

The Social Inflation Task Force is leading a continual effort to stay informed of new tactics and to develop strategies to rebalance the power of litigation. Over are the days of the defense bar’s passive approach. Do not unduly fear the policy limit demand. Boldly try the right cases to verdict. Then communicate your wins with fellow defense counsel and clients. With the right tools, we can rebalance the power and empower ourselves with reasonable solutions to common litigation problems. 

The Social Inflation Task Force is always seeking motivated members willing to contribute to our cause. If you have questions or are interested in joining our effort, do not hesitate to contact the Task Force’s Chair, Chris Turney (cturney@turneyLG.com) or its Vice Chair, Lauren Motes (lauren.motes@dinsmore.com). Be on the lookout for future publications and updates from our task force as we continue to arm the defense bar with the information and strategies it needs to effectively combat social inflation. 

Lauren Motes is an associate at Dinsmore & Shohl LLP. She is vice chair of the Center’s Social Inflation Task Force. Lauren focuses her practice on commercial litigation. She also assists insurers in civil and administrative proceedings involving coverage disputes and claims for common law and statutory bad faith.

Chris Turney chairs both the Center’s Social Inflation Task Force and the DRI Litigation Skills Committee. In creating Turney LG (Kansas City, MO), he assembled trial attorneys who tackle technical engineering, scientific, and medical issues involving products, premises, and professionals. Although Chris’s trial experience has centered in large metropolitan venues, he also enjoys litigating cases in smaller counties, having handled litigation in nearly half of Missouri’s judicial circuits. In addition to serving as local and lead counsel in Missouri, Chris is experienced in Kansas district and appellate courts, as well as federal district courts and courts of appeals. Outside of work, Chris enjoys every minute with his wife and two children and leads Wings 4 Water, a nonprofit that turns chicken wings into clean water for our global neighbors. 

As summer draws to a close, kids go back to school, and we settle in for the end-of-the-year push, I would like to take this opportunity to highlight some amazing opportunities to give back to the community and take time for yourself in the coming months through the DRI Foundation, DRI Cares, and DRI for Life.

September brings us the DRI Foundation’s 2023 International Day of Service. This is the second year the Foundation is asking state, local and national defense organizations (SLNDOs) to hold a service project of their choice during the month of September. Last year, nearly 30 organizations participated in our inaugural event! The DRI Foundation is asking SLNDOs to hold a service project of their choice during the month of September. The SLNDOs have an opportunity to give back to their communities and strengthen relationships with DRI members and SLNDOs across the nation. For more information on the program and how to get involved, please visit our website. 

On September 21 at noon, DRI for Life will sponsor a webinar related to wellness issues for lawyers, called "Improving Attorney Retention: The Importance of Prioritizing Wellness." This webinar will help firm leaders learn the importance of prioritizing wellness and pragmatic ways to retain talent. Our last webinar in May, “Warning Signs vs. Well-Being: How Law Firms are Effectively Focusing on Wellness,” was a great success and is still available through DRI’s Learning Center. We look forward to seeing you again for the September webinar. 

Once again at DRI’s Annual Meeting in San Antonio, Texas, we encourage you to participate in a DRI Cares service project. Keep an eye out for additional information to come on that event, as well, as the meeting approaches. In addition, when you are attending any DRI seminar this fall, please participate in the service projects offered at each seminar. Our substantive law committees (SLCs) have partnered with some incredible local organizations in the seminar locations to give back to our communities as part of seminar programing. We encourage everyone to stop by, learn more about the organization we are supporting, and meet new DRI friends in the process.  

I would be remiss if I did not take this opportunity to thank some amazing DRI leaders in my last article as the vice president of the DRI Foundation. I have been honored to serve the DRI Foundation the past two years with President Matt Keris. Matt and I have truly worked as a team in getting the DRI Foundation off the ground in the past two years. There is no one better than Matt to have taken the helm at the inception of the DRI Foundation, and I am honored to not only call him a colleague but a friend. I also need to thank Catherine Dugan, the chair of DRI Cares, who has worked diligently to restructure and streamline the way our SLCs and SLNDOs offer our members service projects at DRI seminars and regional meetings. Cate’s efforts will serve as the groundwork for the way these projects will function moving forward. Finally, the efforts taken by Lori O’Tool as the DRI for Life chair have expanded the breadth of the DRI for Life Committee. In addition to ensuring there are wellness activities available to DRI seminar attendees, Lori has expanded wellness and mindfulness offerings within DRI, including the compilation of a list of available speakers on these crucial topics and the creation of various webinars for our members. She has also assisted with the exciting new CLE on the Go programs.  

Most importantly, I want to thank you—my fellow DRI members—for continuing to support the DRI Foundation’s efforts to give back to local communities, donate to worthy causes, and most importantly The National Foundation for Judicial Excellence (NFJE). Finally, I want to thank DRI leadership for allowing me to continue to serve DRI in the role of Foundation vice president for the past two years. 

I look forward to seeing you this fall in San Antonio participating in a service project or at a DRI for Life event! 

Jodi Terranova, a partner at Wilson Elser, in its Washington, D.C. office, and co-chair of its Medical Malpractice & Health Care Practice, maintains a robust legal practice concentrated on litigating medical malpractice cases on behalf of physicians, hospitals, managed care organizations, ambulatory surgery centers, urgent care centers, nursing homes and long-term care facilities. She practices in D.C., Maryland, and Virginia. She is the vice president of the DRI Foundation.

Have you planned your service project for this year’s International Day of Service? It’s not too late to get involved! 

This September, the DRI Foundation, along with participating state, local, and national defense organizations (SLDOs/NDOs), will host its second International Day of Service.   

The Foundation is asking SLDOs/NDOs to hold a service project of their choice, irrespective of size or scope, anytime during the month of September—and then let us know about it! Participation will give SLDOs/NDOs the chance to give back to the community; strengthen relationships with DRI members and SLDOs/NDOs across the nation; assist in membership development; and generate positive publicity. It’s as simple as that—hold a service project in September and share it with us. All you need to do now is plan your activity!  

To get started, just complete this short form with the name of your organization, your service project details and date, and the contact person for your organization. DRI will follow up with you in October to request a short article and picture of your service project, which may be publicized in DRI’s publications and on social media.  

We welcome you to be a part of the International Day of Service!

The DRI Foundation is committed to giving back to DRI members, their communities, and the cities that host DRI events. Proceeds raised by the DRI Foundation go directly toward funding and fostering initiatives that make a difference, including diversity programs, healthy living programs, and more.  

The Center is pleased to announce that DRI members Christian Castile, Laura Clark Fey, and Meredith Hamilton recently received appointments to the Artificial Intelligence Working Group.  

Christian Castile is a trial attorney in Reed Smith’s Philadelphia office. His practice involves a wide range of commercial litigation matters, with an emphasis on defending pharmaceutical and medical device manufacturers in products liability litigation. He has successfully represented companies in a variety of mass torts and MDLs. 

Laura Clark Fey, PLS (IAPP), CIPP/US, is principal at Fey LLC in Leawood, Kansas, where she uses her deep expertise and experience in data privacy and cybersecurity, eDiscovery and legal holds, regulatory compliance, and litigation to help U.S. and multinational organizations develop and implement practical, legally compliant solutions to their unique privacy and information governance challenges.  Laura also serves as chair of the Center’s Data Privacy and Protection Working Group. 

Meredith Hamilton is an associate attorney in the Charlotte office of Ogletree Deakins, where she devotes her practice to employment law and employment litigation. Meredith has experience representing employers in litigation involving claims arising under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the North Carolina Retaliatory Employment Discrimination Act, and the Fair Labor Standards Act.  

The purpose of the Artificial Intelligence Working Group is to survey current uses of AI in the legal profession and uses that can be reasonably foreseen. The working group will also identify potential benefits of AI to the legal practice; consider what, if any, regulation will be necessary; and make policy recommendations to the Center Management Council and DRI Executive Committee. 

One of the classics of modern-day dramatic television, the drama “Mad Men,” highlights the lives and daily interactions of several executives at a major New York advertising firm. In addition to examining their interpersonal relationships, the show also highlights the resistance that these primarily white male executives have towards allowing any type of diversity in their world. These are very traditional individuals, set on doing things their way and maintaining the staid, rose-colored culture of the 1950s, even as the nation, and indeed the world, continued to move into the colorful 1960s and rebellious 70s. The firm is so resistant to change that it does not hire a single person of color (and then, only in the role of a secretary) until the fifth season of the show. 

Unfortunately, a similar situation exists within the legal world. Although the legal profession remains primarily male and primarily white, significant strides have been made in the past several years in the realm of diversity and inclusion. Thankfully, the legal world is no longer this vast expanse of homogeneity and we are instead seeing an increase in women and people of color in positions of power, making great strides in shaping the legal landscape. 

However, when we speak of diversity, we immediately, and perhaps correctly, think only of inclusion and embracement based on race, ethnicity, and gender. After all, to borrow a phrase from the popular play Hamilton, in order to elicit real change and have a free flow and exchange of ideas, the “room where it happens” should consist of a diversity of persons, thoughts and ideas. While those types of diversity are important and some would argue paramount, it is also vital to recognize other types traditionally overlooked in the legal profession and beyond. Most notable among these is age diversity. 

What is “age diversity” you ask? Well, good question! Age diversity refers to the idea that in order to have a genuine exchange of ideas, the aforementioned “room” should include not only individuals of different races, gender identities and ethnicities but also persons ranging in age and/or from different age groups and generations. 

Interestingly, it is not that lawyers are unaware of the importance of age and generational diversity, especially when it comes to conversations about change. This subject is discussed quite often, usually around the idea of succession planning. In theory, younger, less experienced attorneys are expected to work their way up from associate to partner, then equity partner and eventually take over running the firm. A problem with this scenario occurs when the issue of age and generational diversity never goes beyond the “talking about it” stage and when some of the older generations at a firm not only ignore the concerns of younger lawyers but exclude them completely from the conversation.  

This is unfortunate given that many young lawyers wish to contribute to the conversation at large. They want “to be in the room where it happens.” Much has been said about Millennials (both younger and older) and now Generation Z. Some among the older generations tend to disregard their often-misunderstood need for safe spaces, mental health days, and a living wage.

However, it is to be noted that they have lived through a very changing world. Older Millennials (lawyers in their early to mid-40s) went from handwriting and typing their middle school papers on typewriters to typing their high school senior thesis on IBMs, to using this new thing called the “internet” for research. They survived the economic collapse of early 2000s with no jobs in sight and more debt than their parents could ever imagine. Younger Millennials saw the rise of the internet and social media and lived through Y2K. Generation Z has essentially conquered the internet and social media, lived and thrived through the COVID-19 crisis. Yet, their contributions, insights and yes, wisdom continues to be overlooked by many, simply so that the staid, comfortable status quo can be maintained.

Why is it important to have age diversity in the legal profession? Because in the same way that it is important to have ethnic, racial, and gender diversity, different generations bring different experiences and varied ideas into the mix. It is no secret that the world is changing, the economy is expanding, and the ideals surrounding what it means to be successful are evolving. Law firms and lawyers, long seen as the harbingers of an evolving world through the ever-changing legal landscape, should be at the forefront of this discussion, not at the mercy of it.

Dafney Dubuisson Stokes is a Partner of Wong Fleming in Princeton, NJ.  She concentrates her practice in commercial litigation, creditor’s rights, bankruptcy and automotive finance. Ms. Dubuisson Stokes presently serves as the co-chair of the Emerging Leaders Initiative within NAMWOLF (National Association of Minority and Women Owned Law Firms), which aims to achieve equity in the legal profession through collaboration between law firms and the corporate sector. Prior to a career in the law, Ms. Dubuisson Stokes worked for almost a decade in the social service sector advocating for youth in specialized foster care placement. 

DRI, in conjunction with the American Property Casualty Insurance Association (APCIA), is seeking to use advanced data science techniques to identify background characteristics that are likely indicators of judicial attitudes towards tort liability. Our goal in this survey is to identify current judges that the defense bar considers as having either a restrained or expansive view of tort liability and, based on the identified judges, to determine which characteristics are correlated with those views. 

We ask for your help in advancing this project and welcome your views on up to three trial or appellate judges, at either the state or federal level, whom you have either practiced before or whose rulings you are otherwise familiar with. Examples of criteria that may serve as a basis for ratings include (but are not limited to) awards, summary judgment rulings, expert witness admissibility, and jury instructions. 

This survey is completely anonymous and confidential, and neither individual nor cumulative responses will be published. 

Take the survey here.  

At the 2023 DRI Annual Meeting in San Antonio, October 25–27, the DRI Board of Directors will name four individuals to join them as national directors (each serving three-year terms). The final candidates are presented to the board upon the recommendation of the Nominating Committee, chaired this year by DRI Past President Toyja E. Kelley. In addition, an individual will be elected as the next DRI second vice president, which begins his or her track to the presidency after serving subsequent years as first vice president and president-elect. Also, one candidate will be elected to serve a one-year term as secretary–treasurer. The following DRI members have filed Declarations of Candidacy for this year’s second vice president and national director positions.

To read a candidate's declaration, click on his or her name. Adobe Reader is required to view the PDF file. Please send any letters of support for the 2023 DRI candidates to elections@dri.org.

Second Vice President

Kathy J. Maus, Butler Weihmuller Katz Craig LLP, Tallahassee, Florida

Jill Cranston Rice, Dinsmore & Shohl LLP, Morgantown, West Virginia

Sara M. Turner, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, Alabama

National Director

Jody C. Corbett, City of Phoenix Law Department, Phoenix, Arizona

Mario J. Delano, Campbell, Foley, Delano & Adams, LLC, Wall, New Jersey

Stacy L. Douglas, Everett Dorey LLP, Irvine California

Matthew P. Keris, Marshall Dennehey, Scranton, Pennsylvania

Danielle M. Waltz, Jackson Kelly PLLC, Charleston, West Virginia

Jeanne Unger died on July 7 of colon cancer. She was only 67. Jeanne was a mother, a wife and an absolutely brilliant lawyer and she played all three roles with verve and charm that made the world a better, funnier and more interesting place for the short time that she was with us.

Jeanne and I both chaired the DRI Insurance Law Committee. I picked her as my vice chair in 2000 and she took over as chair in 2002. At the time, the ILC was largely dominated by men, and Jeanne’s leadership role was not only pioneering in her own right (she was only the second woman to lead the committee, following in the footsteps of Shaun Baldwin) but served as an inspiration to the generation of younger women lawyers that she mentored at her law firms and in the ILC who are now in leadership positions in the Insurance Law Committee. 

The Insurance Law Committee was different twenty years ago. It was smaller then and there was a strong sense of camaraderie.  But 2000–2004 was a chaotic time. First, the 9/11 attacks shut everything down and then vastly complicated our ability to organize programs and travel around the country. Then, we had the “tripartite wars” as the insurance industry sought to impose litigation management guidelines and third-party billing audits and insurance defense firms fought back against whey believed was an unwarranted intrusion into their professional independence.  Jeanne was a key member of the small group of ILC leaders who helped DRI to navigate through a crisis that for a time threatened to tear the insurance defense community apart.

In the tight-knit group of men and women who have led the ILC since it was founded 40 years ago, Jeanne’s passing was an occasion for deep sorrow and happy memories. Paul Butler and Tom Segalla both summed it in one word: sadness. Shaun Baldwin spoke for all of us when she said: “I am still having a hard time wrapping my head around this. Jeanne was one in a million.” Jennifer Cout, who was the DRI staffer who kept us all in line for so many years said: “I will treasure the wonderful memories I have of Jeanne in MN, NYC, Paris, and of course the myriad of insurance programs around the country over the years. She was such a lovely and warm person.”

Julia Molander, who later became the third woman to lead the ILC, had this remembrance:
Jeannie was a truly kind person, in an age when kindness seems to be left behind in the dust of ambition. She invented “Minnesota nice.” Or at least it seems to me. On my first visit to Minneapolis/St. Paul, I think for a regional PLRB conference, she picked me up at the hotel and spent a half-day giving me a tour of the twin cities. Only at the end did I find out that she had a major appellate brief due. I will continue to take inspiration from her.

Paul White, who followed Jeanne as ILC chair in 2004 and was her vice chair for two years before, had this to say:
Jeanne Unger loved people. Her tenure as chair of the Insurance Law Committee represents a time when it felt like everyone in the ILC knew each other. That was no small feat considering Jeanne was simultaneously leading a committee that set new attendance records every time it held a seminar. The really impressive thing is that Jeanne seemed to remember everyone’s name (hundreds of ILC committee members) and often the details of their individual family lives. And she sincerely loved service. Her primary engagement was professional—she wanted every DRI seminar to be the best ever (and each was). But she also served individually. For example, she knew that I always brought my family to the December seminar. When she overheard me asking the hotel for babysitting services for my toddler son, Jeanne immediately cut me off. She said she had the evening open and asked if she could please watch him as she loved babies. That was Jeanne—a 12-hour day for DRI followed by a quiet evening with someone else’s two-year-old. The amazing thing is Jeanne kept in regular contact. She kept in touch as a friend, as a professional peer, and asked about my kids every time she talked to me—including regular and frequent inquiries about that two-year-old who just finished his freshman year at UC Berkeley. Everyone in the ILC could tell you a similar story. Jeanne Unger provided friendship, service, and compassion—and it was always personal in the best possible way. She is loved and will be missed.

I last saw Jeannie in August 2019 while I was in Minneapolis on business. She had recently retired from Bassford Remele, and I feared that our meeting might be bittersweet. Dinner was fun, however, and the wine and memories flowed. What struck me, then and now, was how little Jeanne missed practicing law and how incredibly pleased she was to revel in the successes of her two amazing lawyer daughters and her new role as grandmother to a growing throng of Ungers. There was never a shred of artifice about Jeannie. She was happy and I loved her for it.

Then came the cancer diagnosis. The Mayo Clinic did its best and for a time, we all hoped that she’d beaten this foul disease. She even showed up on some of our ex-chairs ILC Zoom calls and wanted to know that we were well and how were our families. Never a word of regret. She was a class act to the end.

Jeanne is survived by her loving husband of more than 44 years, Mike, her daughters Kate and Emily, and her greatest joys later in life, her grandchildren: Madeleine, Jack, Matteo, and James. 

A celebration of Jeanne’s life will be held in Minneapolis on Friday, August 25, at 10:00 a.m. at Lakewood Cemetery Chapel, with a lunch to follow at the reception center. In lieu of flowers, donations in her honor preferred to Equal Justice Initiative (eji.org) or University of Minnesota Foundation (give.umn.edu).

Commercial Litigation
Dwight Stone, Committee Chair

The Commercial Litigation Committee encompasses everything from business torts to antitrust to class actions and more. What we often hear from our members is the challenge they face in being pulled in so many directions all the time: e.g., billable client work, networking/business development, skills development/CLE, pro bono work, community involvement, and family obligations.  In the Commercial Litigation Committee, we strive to maximize the “bang for the buck” for our members; you can do as much or as little as you like, but members who get engaged and active on our committee quickly find their involvement is rewarding on several levels, including business referral opportunities.

We always have an array of projects going both within our SLGs and committee wide. In particular, we will be making a big push to increase the ranks of our already large committee.  New members are extremely welcome to join, get involved and build lasting relationships.

We are proud of the fact that we offer our members, including Young Lawyers and recent “graduates” of the Young Lawyers Committee, substantive leadership opportunities. Our Committee is welcoming to new members and does not require that you “wait your turn” before you can join our Steering Committee, help lead our in-person and virtual seminars and networking events, or take on any number of other meaningful roles.  

Cybersecurity and Data Privacy
Brent Arnold, Committee Chair

There is no shortage of topics for the Cybersecurity and Data Privacy Committee. The biggest issues are (1) the increased breadth, variety, and frequency of cyber attacks being launched daily against organizations in the U.S. and beyond; and (2) the exponential increase in the complexity of compliance obligations, as U.S. states and other countries scramble to update their privacy laws for the 21st century, protect critical infrastructure, and deal with the cyber and privacy implications of emerging technologies like artificial intelligence.

The Cybersecurity and Data Privacy Committee holds lunch-and-learns that cover hot topics in the practice area. We’ve had some programming covering new privacy laws in China, the threat state-sponsored hackers pose to businesses; we even had a session on the emerging issue of litigation over web tracking.

We’re going to be focusing more on privacy issues emerging from artificial intelligence; we’re also going to have really practical sessions on working with law enforcement and crisis communications experts in dealing with client data breaches. We’re also looking at a session on how to build a career in cyber and privacy.

You don’t need to be practicing in this area to participate and benefit from our Committee’s work. We have seasoned cyber and privacy professionals in our group, but also many cyber-and-privacy-curious young lawyers looking to learn about this emerging area of practice.

Want to get involved?

The DRI Young Lawyers and Insurance Bad Faith Seminars met in Charlotte, North Carolina, and partnered with Thompson for a joint DRI Cares project. Founded in 1886 as an orphanage, Thompson now is a human services leader transforming lives through early childhood, family stability, mental health, and residential treatment services. Thompson is a leading provider of clinical and prevention services for children and families across the Carolinas. Thompson empowers children and families through therapy, education and prevention-based care. 
 
Attendees at the DRI YL and Bad Faith seminars donated funds and assembled 72 hygiene kits for school children and raised an additional $444 to donate to Thompson. Consisting of backpacks filled with basic hygiene supplies, the kits will be given to participants of Thompson’s programming. 

DRI Board of Directors Partners with A Million Thanks

At our recent summer board meeting, the DRI Board of Directors participated in a letter-writing and fundraising project with A Million Thanks. A Million Thanks is an organization that sends cards and letters of appreciation to U.S. military serving around the world. The organization was started in 2015 when the founder was just 15 years old, with a goal of sending one million cards and letters to troops. A Million Thanks met this initial goal within its first 6 months and since then, has sent nearly 13 million letters and cards to our active military.

In recent years, A Million Thanks has expanded from not only letter-writing, but also funding scholarships for children of military personnel, as well as granting betterment of life wishes to active and veteran military men and women. It was an honor to spend some time writing thoughtful letters of thanks and well-wishes to our American soldiers!