The Voice^TM

In Kroft, a trucking accident case, an Illinois jury’s award of $43 million was tossed out due to misconduct during trial by plaintiffs’ counsel—violating pretrial orders limiting evidence and attacking defendants and their counsel. During jury selection for the retrial, plaintiffs’ counsel posted an article to the firm’s blog and Facebook pages, “What Jurors Should Know But Don’t.” The article quoted counsel saying the prior $43 million dollar award “doesn’t come close to making up for the grievous human losses and economic harms caused by defendants’ inexcusable negligence,” and a “fair and reasonable verdict” was closer in range to $100 million that “would serve justice.” The article described plaintiff’s “worsening condition” and detailed evidence excluded by the judge during the first trial. The article also described other things jurors are “kept in the dark” about, such as the requirement of repayment of medical expenses and attorneys’ fees from any verdict and the reduction of any verdict for prior settlements. Readers were urged to contact their representatives to “demand that jurors be told the whole truth!” and “[m]ake your voice heard before you or a family member is called to serve as a ‘kept in the dark’ juror!’”

Defendants moved for mistrial. After questioning the jurors as a group, and warning them of the consequences of outside research, the trial court denied the motion. After the jury awarded over $43 million, defendants filed posttrial motions, including prejudice arising from the social media posts. The trial court denied the motions and defendants appealed.

The Illinois Court of Appeals reversed for two reasons. First, the “the serious effort that was made by the plaintiffs’ attorneys during trial to reach the jury and influence its verdict by communicating information that was highly prejudicial to the defendants’ right to a fair trial.” Second, the court found a “clear abuse of discretion” in “the manner by which the trial court investigated whether the social media posts had in fact come to the attention of any juror.”

For several reasons, the court found the posts were designed to be seen by the jurors. The “most obvious” was the use within of “precise search terms,” including the case style and docket number, names of parties, and full names of counsel. The posts were also placed where a person would look—the firm’s website and Facebook page. The articles were posted on the second and final day of jury selection, and publicly accessible until the trial court ordered them taken down, timing the court found “highly coincidental.” The headline “What Jurors Should Know But Don’t,” and text about jurors being improperly “kept in the dark about important evidence,” were “blatantly directed toward grabbing the attention specifically of persons serving as jurors.”

The court also found that the posts were “an attempt to have the jury return an inflated verdict by circumventing rules of evidence and trial procedure that exist in personal injury cases to ensure that both plaintiffs and defendants receive a fair trial.” The posts thus “sought to accomplish something that the plaintiffs’ attorneys could never do in the courtroom” by suggesting a $43 million verdict “floor” for a second verdict, detailing excluded evidence of the plaintiff’s condition and possibility of developing total paralysis that was “kept from” the first jury, and suggesting a “fair and reasonable” verdict would be closer to $100 million.”

In 2023, a Georgia trial court made a similar ruling, finding that Tik Tok videos posted by plaintiff’s counsel about the trial violated the state’s ethics rule prohibiting lawyers from making “extrajudicial statements that a person would reasonably believe to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” While the court recognized counsel has free speech rights, it found counsel was aware the comments would be disseminated publicly to his 130,000 followers on TikTok and over 30,000 followers on Instagram, and if seen by a juror, would cause a “‘substantial likelihood of materially prejudicing’ the outcome of the trial.” Cartagena v. Milford, No. 20C-4779-4, 2023 Ga. State LEXIS 1385 (Gwinnett County State Court, June 16, 2023).

The author is currently working on a white paper for the DRI Center on Lawyer Advertising and Its Potential Effect on Jury Bias and Verdicts with DRI members Lisa Bellino, Susan Gunter, Jeff Holmstrand, and Kelly Brilleaux.

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New Members for Two Center Task Forces

Maryan Alexander, Heather Ritch Rocks

The Center is pleased to announce several new members for two of its task forces. The Third-Party Litigation Funding Task Force has grown with the additions of Maryan Alexander and Heather Ritch Rocks.

From Wilson Elser’s Baltimore office, Maryan represents clients and insurers in state and federal court in complex civil litigation matters, including commercial disputes, accountant professional liability, premises liability, products liability, toxic torts and other general casualty claims. She also serves DRI as a member of the Commercial Litigation Committee’s steering committee.

A partner in the Philadelphia office of Reed Smith LLP, Heather has over two decades of experience defending pharmaceutical and medical device manufacturers in mass tort litigation involving prescription medications and devices, as well as over-the-counter drugs.

The task force’s role is to study on an ongoing basis the impact of TPLF on the civil justice system. At the 2025 DRI Annual Meeting, they will be presenting on the topic from the meeting’s main stage. In 2018, they published a white paper, Third-Party Litigation Funding: Civil Justice and the Need for Transparency.

Tyler Gorbett, Alex Price, William Ogles, Sunny Rehsi

The Center is also excited to welcome more members to one of its newest and fastest growing groups, the State Legislation and Rules Task Force: Tyler Gorbett of Paul Frank + Collins in Burlington now represents Vermont on the task force; he is joined by fellow New Englander Alex Price of Pierce Atwood LLP in Portland, Maine. William Ogles of Hall Booth Smith PC in Little Rock and Sunny Rehsi of Bowman and Brooke LLP add representation from Arkansas and Michigan, respectively.

The State Legislation and Rules Task Force assists, upon request, State and Local Defense Organization (SLDOs) concerned about a legislative or rule issue in their state. The task force assists in a variety of ways, such as sharing information about the issue from other jurisdictions or, through the Legislation and Rules Committee, recommending action to the Center Management Council (e.g., by providing comments supporting the SLDO positions to legislative committees or rule making bodies). The task force may also alert other SLDOs of issues arising in one jurisdiction which may spread to others, a sort of early-warning system for members and SLDOs.

The State Legislation and Rules Task Force is requesting members from the following states: Alabama, Alaska, Hawaii, Kansas, and Virginia. If you are interested in joining, please contact TheCenter@dri.org.

Amicus Update | Center Joins ASCDC in Asking the Ninth Circuit to Clarify Rules Regarding Contractual “Terms of Use”

The DRI Center for Law and Public Policy was pleased to accept an invitation from the Association of Southern California Defense Counsel (ASCDC) to join their brief supporting the rehearing en banc petition in Chabolla v. Classpass, Inc, et al. The brief addressed how the panel opinion: 1) created conflicts with the objective reasonableness test for contract formation as previously articulated by the Ninth Circuit—consistent with approaches adopted and followed in other circuits; and 2) is contrary to the long line of United States and California Supreme Court decisions applying the “equal treatment rule” that governs the formation and enforcement of agreements to arbitrate under the Federal Arbitration Act.

Join Us for DRI's 2025 Renewable Energy Seminar | May 21-22

Are you prepared for incoming energy policy changes? 

• Unique perspectives from both law firm and industry thought leaders on the state of renewable energy litigation. 
• Recent developments in renewable energy litigation. 
• Predictions about how renewable energy litigation may change over the next four years. 
• What you need to watch for in your practice regarding renewable energy litigation. 

I realize as I have gotten older that my stress is now manifesting as anxiousness. For example, back in the day when I traveled, stress would be channeled to excitement. Now I tamp down travel anxiety by over planning and being highly organized, which has its pros and cons.

Some ways I change my mind set to help deal with stress include:

• Fully disconnect from work. Avoid emailing outside of business hours. (Yes, there is that mediator whose “witching hour” is from 5-6 pm that I will break this rule for.) In my younger days, I would see an email from someone past 11pm and think, WOW-such a go getter and dedicated lawyer. Now my mindset is, WOW-they must be incredibly busy and stressed. If I am working on the weekend, I endeavor to draft emails but not send until Monday.
• A pregnant pause. Don’t immediately respond in kind to the snarky email that opposing counsel so deserves, remember: “Lawyers that fight over every issue do it because they don’t know the issues that actually matter.” And as civil defense counsel: “We are here to solve problems, not create them.&rdquo
• A good mantra. Sometimes repeating: “I can do this.” or “Inhale confidence, exhale doubt.” or “I’m that Bad Ass woman.” (funny story behind one!) are exactly what I need to mentally get back to where I need to be.
• Moment of Zen. I try each morning to look out the window when sipping a fresh cup of coffee to appreciate the view and life generally. Take time to savor to make wonderful moments last.
• Contemporaneous billing. I liken this stress reducer to cleaning your kitchen as you cook. Who wants to face a mountain of dishes and a messy countertop at the of a meal? The habit of billing as you work is a straightforward way to reduce stress.
• Talk a walk. Even a short stroll down the hallway can help relieve stress. When passing through a door it causes a brief memory lapse, as the brain subconsciously resets to process new surroundings. This “doorway effect” can be beneficial by offering a mental refresh that helps clear distractions, refocus attention, and encourage new viewpoints.
• A preventative mental health day. Proactively address those times when you are struggling to focus, lacking motivation, or feeling overwhelmed. Enjoy activities that give you joy or peace. Taking time off is a proven method for reducing burnout and improving productivity.

The above tactics will not necessarily eliminate stress or the source of anxiety, but they have helped me become more resilient and positive. If you are experiencing prolonged changes in your well-being, such as hopelessness or grappling with everyday tasks, it’s important to communicate with your doctor or mental health professional. However, if you are feeling suicidal or experiencing a psychiatric emergency, immediately call 988 or go to your nearest emergency room.

To lift me up, I also enjoy inspirational quotes and here is a favorite from Pope Francis:

“Rivers do not drink their own water; trees do not eat their own fruit; the sun does not shine on itself and flowers do not spread their fragrance for themselves. Living for others is a rule of nature. We are all born to help each other. No matter how difficult it is … Life is good when you are happy; but much better when others are happy because of you.”

Reminders of Upcoming DRI Foundation Initiatives:

DRI for Life Webinar: Beyond the Bar: Comprehensive Mental Health Support for Attorneys
May 14, 2025, at 12 pm EDT; 11 am CDT; 9 am PDT

Click here to register for the webinar.

Join us for an engaging seminar focusing on the crucial topics of mental health and well-being within the legal profession. This event will feature speakers from the State Bar of Georgia and the Tennessee Lawyers' Assistance Program who will provide valuable insights into the distinct services offered by each entity. This seminar is an excellent opportunity for legal professionals to learn about the comprehensive support systems available to them, enhancing both personal and professional lives. Don't miss this chance to gain knowledge, connect with peers, and take a step toward a healthier, more balanced future. Schedule a watch party in your firm’s conference room and register for the webinar today!

Spread the Word: DRI's Law Student Diversity Scholarship Program is Open
Application Deadline: June 30, 2025

Learn more and apply for the scholarship.

The Scholarship program is open to rising (2025–2026) second- and third-year law students. It is focused on students who come from backgrounds that would add to the cause of diversity within the Civil Defense Bar. One scholarship in the amount of $10,000 and two scholarships in the amount of $5,000 each will be awarded. Please forward information on application process for the Scholarship program to you summer interns, law schools, and State and local affinity and minority bar associations!

Lori K. O'Tool of Preg O'Donnell & Gillett in Seattle, Washington, is the President of the DRI Foundation.

The mistake many lawyers make when withdrawing is sharing too much information. See, e.g., In re Gonzalez, 773 A.2d 1026 (2001) (lawyer disciplined for sharing too much information during withdrawal motion); ABA Formal Op. 476 (Confidentiality Issues When Moving to Withdraw for Nonpayment ofFees in Civil Litigation); California Formal Op. 2015-192 (discussing what information a lawyer may ethically disclose in a motion to withdraw).

So how much is too much? Oregon Formal Opinion 2011-185 lists four statements commonly found in motions to withdraw, all of which are likely "too much."

• My client will not listen to my advice. My client will not cooperate with me.
• My client has not paid my bills in a timely fashion.
• My client has been untimely and uncooperative in making discovery responses.
  

What lawyers should and should not disclose can vary by circumstance, and so should be considered very carefully. Strategy and the temperament of the client also play a part in the consideration. If you're in a situation where withdrawal is required or prudent, get in touch with the risk management counsel at Attorneys Risk Management for assistance.

Ericka Esposito has joined Sig Sauer as Assistant General Counsel. Ericka has been a DRI member since 2021.

Jessica Burgasser has joined Hawkins Parnell & Young, LLP as of Counsel. She specializes in toxic tort insurance defense. Jessica has been a DRI member since 2020.

Alyssa Philippi has been promoted to Senior Associate with Butler Weihmuller Katz Craig LLP. Alyssa has been a DRI member since 2024.

2025 Retail and Hospitality Litigation Seminar
May 15, 2025 | Chicago, IL

Join us for the 2025 DRI Retail and Hospitality Litigation Seminar in Chicago—a dynamic city known for its iconic architecture, rich cultural history, and vibrant food scene! The 2025 seminar offers valuable insights from leading experts on the latest legal challenges facing the retail and hospitality industries. This is an excellent opportunity for lawyers, retail and hospitality operators, vendors, claims professionals, and insurers to stay informed on the latest legal trends, developments, and strategies for effectively managing risk in their practices. Plus, experience the energy and innovation that Chicago has to offer! Save up to $400 when you register by May 14!

2025 Renewable Energy Seminar
May 21–22, 2025 | Chicago, IL

The national energy landscape is rapidly evolving, demonstrated by the increasing emergence of renewable energy projects and recent change in administration. Attendees will gain an in-depth understanding about the renewable energy sector from experienced attorneys and directly from the industry itself. Join DRI and its Center for Law and Public Policy to learn how legal experts anticipate these renewable energy projects may unfold and how it will impact you and your clients. Save up to $400 when you register by May 20!

2025 Law Firm Leaders and Managing Partners Conference
June 5, 2025 | Chicago, IL

Join the Law Practice Management Committee in Chicago for lessons on technological, personnel, and business issues facing law firm leaders in defense firms around the country. Law practice management has entered a new frontier with fast-changing technology, evolving client claims management philosophies, a competitive job market, post-pandemic inflation, and ongoing generational differences in the practice of law. Equip yourself with modern solutions at this seminar, featuring dynamic presentations tailored to help law firm leaders tackle daily industry challenges Save up to $400 when you register by June 4!

2025 Diversity for Success Seminar
June 11–13, 2025 | New Orleans, LA

The Diversity and Inclusion Committee invites you to its Annual Diversity for Success Seminar and Corporate Expo in New Orleans, Louisiana! With the theme, “Embracing Diversity, Equity, and Inclusion (DEI) in the New Normal,” this seminar is designed to address the recent scaling back of corporate DEI initiatives, the continuing evolution of diversity, equity, and inclusion within the legal profession and educational spaces, and how attendees can continue to promote diversity, equity, and inclusion in the current landscape. Attendees will also receive resources and tools to incorporate into their career and organization that will improve diversity, equity, and inclusion. Save up to $300 when you register by June 10!

2025 Young Lawyers Seminar
June 11–13, 2025 | New Orleans, LA

The 2025 DRI Young Lawyers Seminar, held June 11–13 in vibrant New Orleans, offers young attorneys an unparalleled opportunity to sharpen their litigation skills, expand their professional networks, and stay ahead of emerging legal trends. This year’s program features a dynamic mix of substantive CLE sessions, practical skills workshops, and interactive networking opportunities designed to empower the next generation of lawyers. Learn how to navigate the complexities of the tripartite relationship, manage liability issues in remote and hybrid work environments, and embrace emerging tools like AI to enhance your legal practice. Gain actionable business development strategies in the “Building Your Book” session, and take your skills to the next level with Corporate Fast Pitch—where you’ll receive real-time feedback on your client pitch from leading in-house counsel. Beyond the sessions, enjoy networking opportunities through engaging panels, local outings, and a standout reception designed to help you grow your network and your career. Save up to $500 when you register by June 10!

2025 Trucking Litigation Essentials
June 25–26, 2025 | Denver, CO

Elevate your skills, unlock your potential, and gain valuable insights from top industry leaders and experienced trucking attorneys from across the country at this dynamic event. Become an indispensable asset to the trucking industry as you master how to ethically navigate toxic personalities, plan your trial presentation from day one, and hone your skills to create and utilize leverage in settlement negotiations. Save up to $500 when you register by May 12!