1 Committee News Toxic Torts and Environmental Joint LawAutomobile Committee Law and Staff Counsel Committee CARBON NANOTUBES: THE NEXT ASBESTOS? Fionna Mowat, Exponent, Joyce Tsuji, Exponent, Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Advance the Civil Justice System Advance the Civil Justice System Fall Carbon nanotubes (CNTs) hold asbestos fibers discussions of First reported in , CNTs promise PROVING for many DAMAGES beneficialin MOTOR parallels between VEHICLE thesecrash two epitomize CASES theinvolving emerging field of applications. MILD TRAUMATIC However, there have BRAIN substances INJURY are natural. Thus, given nanotechnology, defined by some been concerns and calls for a the legacy of asbestos-related as the ability to measure, see, moratorium By: Matthew raised A. Passen over mounting injury and the thousands of cases manipulate, and manufacture evidence Attorneys thatwho CNTrepresent may be individuals the litigated in each serious year, severity consideration of the ofinitial things physical usually trauma between that caused 1 and the new personal asbestos, injury cases 1 generally or at least agree that possible mild traumatic implications injury, of the not use the of severity 100 of nanometers. the consequences 4 CNTs of the are injury. a type deserving brain injury of special is one toxicological of the most difficult CNTsinjuries research to and in consumer of carbon-based engineered Continued on page 11 attention prove to insurance due to prior adjusters experiences and juries. products Although is prudent. the nanoparticle generally formed by with physical, asbestos. cognitive 2 Theand shape emotional and sizeconsequences of mild Continued on page 18 of traumatic some agglomerated brain injury can CNTs be quite aresevere, they are often IN THIS ISSUE: similar invisible to to asbestos the casual observers, most and sometimes even to IN THIS ISSUE desirable. the client s treating And because medical CNTs professionals. for Providing Damages In Motor Vehicle structural utility are long and Carbon Nanotubes: Crash The Next Cases Asbestos Involving Mild..... Traumatic thin characteristics The following are some thought of the to major challenges to Editor s Message.. Brain Injury impart proving damages increased motor potency vehicle tocrash cases involving mild traumatic brain injury, as well as some Tatera thoughts v. FMC on Corporation: Message When From Is The A Product Chairs No. A. Product? overcoming Miller, G those Mounting challenges: evidence that carbon Mexico s National Wastes Technology: Management Taking Program. On Distracted nanotubes may be the new asbestos. Friends of the Earth Characterization Australia. Available at as Mild Environmental RiskDriving During Restructuring And... Bankruptcy The Royal Society and Royal Academy of Engineering The term (RS/RAE). mild brain Nanoscience injury andis misleading. Mild Upcoming TTEL Programs Wrestling AndWith Meetings The Reptile: How..... To nanotechnologies. traumatic brain Royal injury Society and is defined Royal Association by the Centers for Disease of Engineers. London: The Royal Society. Available at Control and Prevention as head trauma followed Limitations by brief Of Toxicogenomic Identify And Studies Neutralize To Assess Reptile Toxic Exposures 3loss Iijima, of S. consciousness, Helical microtubules impaired of graphitic consciousness And Injury or other From Benzene. Strategy.. Before It s.... Too.... Late carbon. observable Nature (London) signs 354: of neurological or neuropsychological 4 National Science and Technology Council (NSTC). Burlington Northern: The The Law Requisite School Intent 180. For... Arranger Liability dysfunction. In other words, traumatic brain injuries The National Nanotechnology Initiative. Strategic Under Cercla Plan. are classified Washington(as DC: mild, NSTC, moderate Committeeor onsevere) based on the TIPS Calendar TIPS Calendar Technology, Subcommittee on Nanoscale Science, Engineering, and Technology. December. Available at NNI_Strategic_Plan_2004.pdf.
2 AUTOMOBILE LAW LEADERSHIP ROSTER Chair Laura Maki Sharon W Ware & Associates 2400 Century Pkwy NE, Ste 200 Atlanta, GA (404) Fax: (404) Chair-Elect Tamara Tomomitsu Borden Ladner Gervais LLP 40 King St W, Scotia Plz Toronto, ON M5H 3Y4 (416) Fax: (416) Last Retiring Chair Robert Rodriguez Wilson Turner Kosmo LLP 550 W C St, Ste 1050 San Diego, CA (619) Fax: (619) com Council Representative Robert Caldwell Kolesar & Leatham 400 S Rampart Blvd, Ste 400 Las Vegas, NV (702) Fax: (702) Diversity and Membership Vice-Chair Christine Davis Manatt Phelps & Phillips LLP th St, Ste 1100 Washington, DC (202) Diversity Vice-Chair Denise Di Mascio Farmers Insurance Group 3111 Camino Del Rio N, Ste 700 San Diego, CA (619) Fax: (619) Law Student Vice-Chair Brandon White W Tamarisk Ave, Buckeye, AZ (623) Membership Vice-Chair Joel Zylstra Godfrey & Ashley 444 Cedar Street, Suite 1250 Saint Paul, MN (651) Fax: (651) com Newsletter Vice-Chair Kirsten Soto Baron & Budd PC 3102 Oak Lawn Drive, Suite 1100 Dallas, TX (214) Fax: (214) Scope Liaison Tiffany Alexander Campbell Campbell Edwards & Conroy 1205 Westlakes Dr, Ste 330 Berwyn, PA (610) Fax: (610) Technology Vice-Chair Jay Wolman Raymond Law Group 90 National Dr, Ste 3 Glastonbury, CT (860) Fax: (860) Technology Vice-Chair Jay Marshall Wolman 90 National Dr, Ste 3 Glastonbury, CT (617) Vice-Chairs Tiffany Alexander Campbell Campbell Edwards & Conroy 1205 Westlakes Dr, Ste 330 Berwyn, PA (610) Fax: (610) William Bowen Bowen Painter & Gorman LLC PO Box 8966 Savannah, GA (912) Fax: (912) Colin Cox 1910 Marshall St, Houston, TX Hilary Fox Godfrey & Ashley 444 Cedar Street, 1250 UBS Plaza Saint Paul, MN (651) Fax: (651) com Mark James Harris Maxey Law Offices PS 1835 W Broadway Ave, Spokane, WA (509) Fax: (509) Saba Hashem D Angelo & Hashem LLC 401 Andover St, Ste 202 North Andover, MA (978) com Benjamin Jones Lewis King Krieg & Waldrop PC PO Box 2425 Knoxville, TN (865) Fax: (865) Leland Kellner Lavin Oneil Cedrone & Disipio 190 N Independence Mall W, Ste 500 Philadelphia, PA (215) Fax: (215) Valerie Kellner Rawle & Henderson LLP 1339 Chestnut St, Fl 16 Philadelphia, PA (215) Fax: (215) Matthew Passen Passen Law Group 1 E Wacker Dr, Ste 1750 Chicago, IL (312) Fax: (312) Jeremy Taylor Carr Allison 6251 Monroe St, Ste 200 Daphne, AL (251) Fax: (251) Hans Voss Voss Law Firm PO Box 56550, Albuquerque, NM (505) Fax: (505) Latanishia Watters Hand Arendall LLC 2001 Park Pl, Ste 1200 Birmingham, AL (205) Fax: (205)
3 STAFF COUNSEL LEADERSHIP ROSTER Chair M Gerard Gregoire 35 Linden Rd Lake Zurich, IL (847) Chair-Elect Cynthia Choate Farley Seletos & Choate 5255 E Williams Cir, Ste 6600 Tucson, AZ (520) Fax: (520) farmersinsurance.com Council Representative Holly Polglase Hermes Netburn O Connor & Spearing PC 265 Franklin St, Fl 7 Boston, MA (617) Fax: (617) Diversity Vice-Chairs Daniel Acosta (Past Chair) Farmers Insurance Exchange 500 Marquette Ave NW, Ste 1050 Albuquerque, NM (505) Fax: (505) com Stephanie Carlson American Family Insurance Riverport Dr, Ste 175 Maryland Heights, MO (314) Fax: (866) Denise Di Mascio (Past Chair) Farmers Insurance Group 3111 Camino Del Rio N, Ste 700 San Diego, CA (619) Fax: (619) Law Student Vice-Chair Amanda King 2034 Spring Garden Street, 3R Philadelphia, PA Membership Vice-Chair Joel Zylstra Godfrey & Ashley 444 Cedar Street, Suite 1250 Saint Paul, MN (651) Fax: (651) com Scope Liaison Michael Colliflower Aetna, 5431 Maple Ridge Court Sanford, FL (407) Technology Vice-Chair Briana Gornick Godfrey & Ashley 444 Cedar St, 1250 UBS Plaza Saint Paul, MN (651) Fax: (651) farmersinsurance.com Vice-Chairs Kathryn Blakey 4805 Pinesprings Dr Reno, NV John Cartafalsa (Past Chair) Zurich Staff Legal Services 1 Liberty Plz, 28th Fl New York, NY (212) Fax: (212) Daniel Curriden 1101 Sable Mist Ct Las Vegas, NV (702) Fax: (702) Christine Davis Manatt Phelps & Phillips LLP th St, Ste 1100 Washington, DC (202) Carrie Gallia Lindquist & Vennum PLLP 80 S 8th St, Ste 4200 Minneapolis, MN (612) Fax: (612) Patricia Hughes (Past Chair) Allstate Insurance Company Executive Dr, Ste 270 Farmington Hills, MI (248) Fax: (248) Michael Lenoff Carta Falsa Slattery Turpin & Lenoff 165 Broadway, 28th Fl New York, NY (212) Laura Maki (Past Chair) Sharon W Ware & Associates 2400 Century Pkwy NE, Ste 200 Atlanta, GA (404) Fax: (404) Thomas McNally (Past Chair) Chubb & Son Inc PO Box 9372, 333 Earle Ovington Blvd Fl 2 Uniondale, NY (516) Fax: (516) Craig Orraj Orraj Anderson & Obrey-Espinoza 500 Marquette Ave NW, Ste 1050 Albuquerque, NM (505) Fax: (505) Julia Phillips Pite Duncan LLP 9311 SE 36th St, Ste 100 Mercer Island, WA (206) Fax: (206) Maurice Ruffin Johnson, Johnson, Barrios & Yacoubian 701 Poydras Street, Suite 4700 New Orleans, LA (504) EXT 209 Fax: (504) Robert Smith Allstate Insurance Company 101 E Kennedy Blvd, 2125 Tampa, FL (813) Gerald Strachan Strachan & Hatzell 1650 Market St, Fl 41 Philadelphia, PA (215) Fax: (215) Latanishia Watters Hand Arendall LLC 2001 Park Pl, Ste 1200 Birmingham, AL (205) Fax: (205) Vanessa Williams IHS, Inc Evergreen Rd, Ste 900 Southfield, MI (248) Fax: (248) James Young Young Scanlan LLC 3010 W De Leon St, Ste 200 Tampa, FL (813) Fax: (813)
4 This year marks the seventh year since I attended my first TIPS meeting. Now I have the pleasure of serving for the second time as Chair of a TIPS General Committee, this time as Chair of the Automobile Law Committee. I am so excited to share with you some of the plans that we have for the Committee this year. We are currently working on plans for co-sponsorship of several CLE s, including a webinar with the Insurance Regulation and Staff Counsel Committees; co-sponsorship of a program with Trial Techniques that has been approved for Annual Meeting 2015; and we are in the early stages of development of an ethics and professionalism program that we will be working on with the Ethics Committee and seeking co-sponsorship by other committees. As a Past-Chair of the Staff Counsel Committee, I am also pleased that we are continuing our partnership with the Staff Counsel Committee in publishing our second joint newsletter, and look forward to continuing that partnership in the Spring. The Automobile Law Committee is set for Strategic Planning in Houston during the ABA Mid-Year Meeting. We will be working on updating our three-year plan and goals during that session. We want to continue the forward momentum of our Committee that was started with the leadership of Saba Hashem and Robert Rodriguez before me, by continuing to provide quality programming and publications in the areas of automobile accident litigation, including, automobile products liability, accident liability, insurance coverage issues, no-fault issues, and current legislation. The Automobile Law Committee invites you to join our Committee. We look forward to seeing you at our next meeting. Laura Sidwell Maki Chair, Automobile Law Committee MESSAGE FROM THE CHAIRS The Tort, Trial and Insurance Practice Section (TIPS) currently has over 25,000 members and 31 general committees that focus on legal practice areas important to the insurance industry. The Staff Counsel Committee was formed in 2001 and celebrates its 13 th year of existence this year. Our committee has a significant influence in the ABA, TIPS, statewide defense counsel associations, and the insurance industry in general. The Staff Counsel Committee has also been recognized multiple times, including Exceptional Effort in promoting Diversity in 2009 and the Overall Excellence Award in 2013 for going above and beyond as a committee. Every year, each of us places a focus on improvement and growth as we determine our next steps. This improvement and growth can either be personal or for our respected firms. The idea is to continue to find ways for improvement and added value every year. Our committee has likewise determined that our next steps involve seeking to add value by placing a priority on committee growth, mentorship and improvement in We would like to build on our previous efforts in legal educational awareness for the underprivileged, community service, and diversity in the legal field. We have all been blessed to obtain a law license or even attend law school. It is the ability to impact the life of another that sets us apart as we look forward each New Year. The Staff Counsel Committee welcomes all ABA members who are interested in improving the lives of those less fortunate than us and educating them on the wonders of the practice of law. As we move forward in , the Staff Counsel Committee will continue to play a role in the coordination of CLEs. We will also remain very active in community service projects that have an impact. Finally, our committee 4 4
5 will continue to visit secondary schools and law schools in order to assist with educating on the wonders of the legal profession in I am proud and honored to be the Chair of the ABA TIPS Staff Counsel Committee for the year Staff Counsel Operations have played a significant role in the legal and insurance industry for decades. The focus for TIPS this year is to improve and grow our section membership, promote the objectives of the American Bar Association and serve those involved in tort and insurance law by bringing together lawyers of diverse backgrounds and practice by providing leadership, inspiring professional excellence and improving the civil justice system. We proudly embrace this focus and look forward to the thousands of attorneys who call themselves Staff Counsel continuing to advocate on behalf of their clients and contribute to the Legal Profession and Defense Bar. Gerard Gregoire Chair, Staff Counsel Committee 2014 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312) All rights reserved. The opinions herein are the authors and do not necessarily represent the views or policies of the ABA, TIPS or the Automobile Law and Staff Counsel Committee. Articles should not be reproduced without written permission from the Copyrights & Contracts office Editorial Policy: This Newsletter publishes information of interest to members of the Automobile Law and Staff Counsel Committee of the Tort Trial & Insurance Practice Section of the American Bar Association including reports, personal opinions, practice news, developing law and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee, nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority. Copies may be requested by contacting the ABA at the address and telephone number listed above. Hypertext citation linking was created by application of West BriefTools software. BriefTools, a citation-checking and file-retrieving software, is an integral part of the Westlaw Drafting Assistant platform. West, a Thomson Reuters business is a Premier Section Sponsor of the ABA Tort Trial & Insurance Practice Section, and this software usage is implemented in connection with the Section s spon sorship and marketing agreements with West. Neither the ABA nor ABA Sections endorse non-aba products or services. Check if you have access to West BriefTools software by contacting your Westlaw representative. VISIT US ON THE WEB AT: 5 5
6 Joint Automobile Law and Staff Counsel Committee Newsletter Fall 2014 Save the Date! The TIPS Section Conference Join your colleagues for the premier CLE conference for insurance defense, corporate, and plaintiffs attorneys. April 29 May 1, 2015 The Ritz-Carlton Philadelphia, PA This inaugural event will feature: Over 24 hours of top-notch CLE programming, including three hours of ethics credit, to meet all of your educational needs Practice area-specific CLE tracks featuring premier speakers, including judges and in-house counsel Numerous opportunities to network with insurance defense, corporate, and plaintiffs attorneys; judges; and local lawyers at events that include the Leadership in Action Luncheon and Gala Dinner at the Constitution Center Substantive committee meetings and social events Specialized practical CLE for all attorneys, including young lawyers and judges Philadelphia! Where American law began For more information visit americanbar.org/tips. 6 6
7 TECHNOLOGY: TAKING ON DISTRACTED DRIVING By: Brandon White Anyone that has purchased a new vehicle in the last 5-10 years would have surely noticed the surge of new modern technologies offered in today s automobiles. From satellite radio, Bluetooth audio, and even mobile internet hotspots, when it comes to the so called infotainment, it can be hard to keep up with the technology features being offered in our automobiles. Unfortunately, technology also can have its negative effects. The same devices that entertain us can also prove to distract us from critical task of driving. In the US, the majority of collisions that occur each year are caused by driver error distracted driving. In fact, distracted drivers were responsible for causing approximately 41% of all collisions in the U.S. in NHTSA National Motor Vehicle Crash Causation Survey Report to Congress (2008). How do cell phone use fit into all this? The Centers for Disease Control conducted a study that analyzed 2011 data on distracted driving, which included talking on a cell phone and sending and receiving text messages while driving a vehicle. The study revealed staggering numbers: 69% of U.S. drivers admitted to talking on their phones while driving and an estimated 31% percent of U.S. drivers admitted to texting while driving. Mobile Device Use While Driving United States and Seven European Countries, 2011, Centers for Disease Control and Prevention. One can only imagine higher percentages if all study participants responded truthfully. The overall costs of these collisions are staggering; in the U.S. alone, automobile crashes cost the country an estimated total of billion dollars annually as of John Welsh, AAA Says Auto Accidents Cost $164.2 Billion a Year, Wall Street Journal. Rear-view Camera System Technology has also been used for new safety innovations allowed for efforts to help combat this dangerous trend of distracted driving. Take for example NHTSA s recent announcement mandating all new motor vehicles less than 10,000lbs to be equipped with rear-view back up camera systems by the year C.F.R The purpose of such a safety system would be to help minimize the chance of a tragic backover accident. These systems must allow for a driver be able to view a 20x10 area of a vehicle s rear blind zone from within the vehicle. This safety feature, which is already being offered as optional equipment on various vehicles, is intended to help warn distracted drivers of an obstruction in their path. NHTSA is researching the possible mandate of other quasi-passive safety systems. Lane Departure Warning Systems One such safety system is the optical-based lane departure warning system. The goal of this system is to warn a driver of a possible unintentional lane change, and take the necessary correction. This camera-based system is usually attached to a vehicle s interior roofline. This system uses a forward and downward-looking optical sensor with image processing algorithms to determine where the lane edge lines are located. Barickman, Lane Departure Warning Systems, nhtsa Vehicle Research and Test Center. The camera is aimed in a downward angle toward the road surface. If a properly-equipped vehicle is driving down the road, and if the forward looking camera detects the vehicle s tires crossing a painted travel lane line without a turn signal indicator activated, the system will alert the driver. Depending on the manufacturer of the vehicle, drivers can be alerted by a variety of means including the illumination of a visual display on the dashboard control or an audible tone or beep. For example, if a properly equipped BMW vehicle is driving within a lane and the vehicle changes lanes with a turn signal activated, then no warning occurs as it is assumed to be an intentional action by its driver. However, if the BMW vehicle drifts into another lane without the activation of any turn signal, the driver of the BMW will be alerted with an audible tone and a light vibration of the steering wheel. BMW, In the case of Hyundai, drivers of its Genesis models as well as the company s flagship sedan the Equus, can opt for a lane departure system. The system, which Hyundai dubs Lane Keep Assist, detects when a driver has difficulty staying in his or her lane, and helps by using gentle steering compensation above 43mph. Hyundai, The system also will activate a vibration in its steering wheel to bring the driver s attention to the lane drift. In addition, the driver will experience a slight pull of his or her seatbelt if the lane drift continues uncorrected for over 3 seconds. Front Crash Avoidance Systems Front Crash Avoidance Systems are another important safety feature designed to minimize the probability of a Continued on page
8 WRESTLING WITH THE REPTILE: HOW TO IDENTIFY AND NEUTRALIZE REPTILE STRATEGY BEFORE IT S TOO LATE By: Jonathan T. Woy A. What is The Reptile? Surgeons should not be allowed to take unnecessary risks during surgery. To jurors, such a statement would surely seem to be difficult to disagree with. However, to a defense attorney in a medical malpractice case, such a statement should indicate that the Reptile may have entered the courtroom. The Reptile is a trial strategy based on a 2009 book entitled Reptile: The 2009 Manual of the Plaintiff s Revolution. The Manual was co-authored by Don Keenan, a plaintiffs attorney, and David Ball, a jury consultant. Keenan and Ball claim that use of the Reptile strategy has resulted in roughly $5 billion in plaintiff verdicts since The authors assert that plaintiffs attorneys can induce jurors to return inflated verdicts for the plaintiff by appealing to each juror s reptilian complex. The reptilian complex is a portion of the brain identified in neuroscientist Paul MacLean s theory of the triune brain as the portion of the human brain that controls unconscious, survivalist instincts. According to MacLean, those unconscious instincts routinely trump logic and emotion in decisions where a person s safety or survival is threatened. Building on MacLean s theory, Keenan and Ball argue that attorneys can appeal to each juror s reptilian complex during a trial. They instruct that attorneys can do so by pushing aside the actual harm caused in the case at hand, and re-framing the case to focus on how the defendant s (or a similar actor s) conduct, if left unchecked by a hefty verdict, could put the juror in danger. To do so, plaintiffs attorneys enlist the help of safety rules, and focus on the wrongful conduct of the defendant eliciting sympathy for the plaintiff. For example, a plaintiff s attorney might re-frame a medical malpractice case in which the surgeon chose between two different methods of surgery that would ultimately produce the same result. Suppose the surgeon chose the method offering a higher rate of long term success, but also a higher rate of short term complications, and the plaintiff died as a result of those short term complications. What the Reptile really is, is a method of persuasion. As a tool in re-framing the case, the attorney might ask the surgeon whether he believes that surgeons should be allowed to take unnecessary risks during surgery. If the surgeon concedes that unnecessary risks should not be taken during surgery, the plaintiff s attorney will have successfully trapped him or her into agreeing to the safety rule. Safety rules, essential components of the Reptile strategy, are broad, general statements that apply to a wide variety of situations and are nearly impossible to reject. The surgeon in the above hypothetical would have violated the safety rule because that surgeon elected to forgo the safer, but potentially less effective, surgery in favor of the riskier, but possibly more effective, alternative. Thus, the plaintiff s attorney could argue that the surgeon subjected the patient to an unnecessary risk that produced harm, and the attorney s argument would be based wholly on the safety with which the surgeon agreed. In focusing on the surgeon s safety rule (which does not mention the harm caused to the plaintiff), the plaintiff s attorney has successfully shifted the focus of the lawsuit from the plaintiff s injuries to the defendant s wrongful conduct. Keenan and Ball posit that doing so awakens the reptile (complex) in the juror and makes them more likely to find for the plaintiff based on a desire to prohibit risky behavior that could potentially cause them harm in the future. Focusing on the conduct of the defendant, instead of the harm to the plaintiff, is a core emphasis of the Reptile. B. Wrestling with the Reptile Plaintiff attorneys using the reptile strategy properly begin doing so long before trial. This makes it easier to detect and allows a defense attorney to more effectively prepare witnesses and plan how to deflate the Reptile s efficacy. The Reptile thrives on unprepared witnesses. Obviously, a witness who agrees to a safety rule on the stand without realizing that the defendant s conduct clearly violated the rule has not helped the defense. Continued on page
9 THE LAW SCHOOL 180 By: Amanda King It is no secret that recent law school graduates are facing daunting employment prospects. According to Forbes.com, only 57% of the class of 2013 found fulltime long-term jobs, meaning jobs that will last more than one year and that require employees to pass the bar exam. The unemployment rate for young lawyers rose from 10.6% to 11.2% in 2013, according to the ABA nearly double the national unemployment rate of 5.9% for the same year. That number would have been even larger if it took into account the number of underemployed lawyers lawyers employed part-time or in low paying positions that they were overqualified for. In spite of those employment numbers, law school enrollment dipped insignificantly, by 6,000 students between 2011 and 2013 to 150,111, according to the New York Observer. In this legal market, more law students are resorting to employment outside of the legal field, fewer law students are finding long-term employment, and many students are finding it difficult to find employment at all. Despite all of this negative evidence, would-be attorneys continue to line up to take on nearly $125,000 (on average) in student loan debt to attend private law schools and more than $84,000 on average to attend public law school. It is a pretty steep gamble considering the chances of finding full-time and longterm employment after graduation. So why do more than 150,000 students continue to pursue law degrees each year? Could it be, in part, that the gamble that law school has become is not wholly obvious to some? Law schools are doing everything they can to make themselves attractive to the best and brightest students and are unwilling to talk about the hardships that face young lawyers, including the lawyers they churn out. When putting together their alumni employment statistics, schools will include any employment part-time, nonlegal, temp-work to shrink the percentage of their graduates that fall into the unemployed category. You would be hard-pressed to find any school that lists the percentage of its graduates who remain underemployed nine months out of law school, and you will not find a single school that lists the percentage of its graduates Law students do a complete 180 over the course of their three years in law school. that cannot afford their monthly student loan payments despite being employed. Greater transparency from law schools might keep some students from applying, and that would be a good thing. One reason that employment prospects in the legal field are so grim is that there are too many law school graduates being churned out, year after year, for a very limited number of positions. Schools would not need to fluff their stats if they were not producing more lawyers than their communities could possibly employ. Even if some are not aware of the gamble that law school has become, it is definitely not the case for many if not most of the students who choose to pursue a law degree. Call it stubbornness or passion, but many students pursue a law degree with full knowledge of the troubling legal climate they will face upon graduation and each and every one of them believe that they will be the exception. They believe that they will come out on top because they believe they have what it takes or they simply don t believe the climate is as bad as everyone says it is. Those are the only two explanations, because if they knew about the daunting employment prospects and thought it was likely they would fall victim to the daunting statistics, there is no way they would bother. It only makes sense that they did not know, did not believe, or expected to succeed. Whether they did not believe or were confident they would find success, law students do a complete 180 over the course of their three years in law school. Against the advice of lawyers that they know, against their knowledge of the troubling job market, against all odds, the students that enroll in law school decide that they will not be dissuaded, that the advice and statistics will not apply to them, and that they are going to pursue their legal career and be successful. Over the course of their three years at law school, they see first-hand how difficult and competitive it is to land a good summer internship. They see how many applicants interview for just a handful of positions. Then, they meet upperclassman and witness or hear about the difficulties many of them face upon graduating. They come across the same statistics and advice that they did 9 9
10 not heed when they applied to law school, but now they have six-figure debt hanging over them. The confidence law students had when they applied quickly evaporates for many by their third year. And in fairness, this may not apply to the few that enroll in elite Top Ten law schools where employment prospects are better, but still not guaranteed, or to students who are not footing the bill for their own education, but most every other law student in their third year is more worried about finding a job rather than a job they love or even like. When everywhere you look and everyone you talk to paints the same grim picture of the legal job market you will face upon graduating, you accept as a fact that you will have to settle and you start looking for any job instead of the job. You are more likely to say yes to the first offer rather than hold out for the job you want. You are more likely to apply to anything and everything and hope that something pans out, while simultaneously increasing the competition for jobs you would never apply to if you felt you had a choice. Nobody wins in this situation. Employers have to weed through a greater number of applicants and attempt to figure out which applicants really want it because they are passionate about the work, and which are just passionate about finding work. The current legal market crushes the passion of young lawyers and the lack of transparency from law schools about the reality of the legal market injects the market with young lawyers who never really had the passion to begin with. A law degree was once thought to be a surefire way to ensure a comfortable position in the upper-middle class a ticket to success and comfort. Many disgruntled law students may have had unreasonable expectations that that was still the case and greater transparency could have disillusioned them before they entered the profession blindly and incurred debt so substantial that they could not turn back. Those who were warned from other sources may have taken those warnings more seriously if law schools were not pretending that the product that they are pushing is worth incurring more and more debt, while failing to mention the decreasing ability of their graduates to pay that debt off. No matter who gets the blame, it all boils down to a single culprit that causes every anxiety that a law student faces the debt. If you figure out after a year or two that law school really was not for you, or you should not have taken the gamble, it is too late. You have already incurred a significant debt and it seems your only choice is to march on and hope for the best. It does not seem like an option to stop now. Your humanities degree is certainly not going to pay off that extra $40,000 you just wasted figuring out you made a mistake. And each year three years total it becomes that much harder to turn back or try another path. Three years worth of debt, which increases year after year as tuition rises and rises for no apparent reason, for a degree that will mostly just help you pass an entrance test, and you are stuck with it whether or not you pass the test or find a job. The biggest challenge facing young lawyers and law students is staying true to the reasons you chose to pursue a legal career in the first place. It is fighting an urge to settle. If you did not know when you applied or enrolled into law school that this career choice was a gamble, you figure it out quickly and it hangs over your head until you land that dream job something most law school graduates will not do. It gets harder and harder to believe that you will be one of the lucky ones and it becomes more and more depressing that being a lucky one simply means finding a long-term legal job after graduation. Something needs to be done to fix the law school 180 and everyone has a part to play. Amanda King can be reached at gmail.com
11 PROVING DAMAGES IN... Continued from page 1 It is true that the vast majority of patients diagnosed with mild traumatic brain injury will fully recover within a few months of the inciting trauma. However, the medical literature is clear that a minority of patients (10-15%) will remain profoundly affected for life with persisting physical symptoms such as headaches, cognitive dysfunction, and emotional changes. To overcome the negative connotation of the terms mild or minor, as your client s brain injury might be referred to by his or her medical professionals, it is important to carefully explain the classification, and why it is completely consistent with the severe impairments and dysfunctions experienced by your client. Minimal Vehicle Damage In motor vehicle crash cases involving substantial damage to the vehicles, it is much easier to persuade an adjuster or jury that the crash caused a significant brain injury. Similarly, where your client sustained other physical injuries in the crash, such as a skull fracture, it is much easier to bootstrap the claimed brain injury to her other physical injuries. Conversely, proving brain injury damages is especially difficult in motor vehicle crash cases with minor vehicular damage and no other physical injuries. To overcome this challenge, it is critical to familiarize yourself as well as your client s treating physicians with the medical literature on mild traumatic brain injury. Armed with the literature, have the defense experts admit that people can be severely injured or killed in car crashes with virtually no vehicle damage. Become familiar with the literature on biomechanics of trauma, and the governmental studies on the amount of force, including rotational or angular acceleration force, sufficient to cause a brain injury. The fact is serious brain injuries can occur in car accidents without substantial vehicle damage or other physical injuries. Further, it is important to educate jurors and adjusters through your client s medical treaters and experts on how the brain becomes injured in such a motor vehicle crash, including how the trauma can cause diffuse tearing, shearing, and axonal injury to the brain. Normal Head CT or MRI Due to the subtle nature of mild brain injury, it is common for typical brain imaging (CT or MRI) to come back as normal showing no evidence of injury. However, it is important to realize that a normal CT or MRI does not rule out a traumatic brain injury. It does, however rule out other causes of your client s brain injury-related symptoms, such as tumors or masses. Furthermore, a traumatic brain injury may take hours or days to develop, and therefore imaging taken in the ER following a motor vehicle crash similarly does not rule out such an injury. More importantly, although traditional brain imaging (CT and MRI) will identify gross abnormalities in the brain structure, it will not identify areas of brain dysfunction. Accordingly, it may be appropriate for clients who continue to experience symptoms of TBI following a motor vehicle crash to undergo functional brain imaging scans, which look at how the brain actually functions, such as: Functional MRI (fmri) Diffusion tensor imaging (DTI) Positron emission tomography (PET) Single-photon emission computerized tomography (SPECT) Such tests may not be covered by insurance, but may nonetheless be worth the expense to objectively identify (or rule out) areas of brain dysfunction. Abnormalities identified in functional brain imaging can be correlated with the symptoms experienced by brain-injured patients to objectively corroborate the brain injury. This type of demonstrative evidence is extremely powerful in front of a jury. Without objective evidence of a brain injury, the plaintiff is much more susceptible to the traditional defense arguments of exaggeration, malingering, and other efforts to blame the victim. Which is why in every brain injury case, it is important for plaintiff lawyers to consider alternative brain imaging in the face of a normal CT or MRI. Client Looks Fine Most clients with mild traumatic brain injury look perfectly fine, and can even hold intelligent conversations without obvious signs of injury. Therein lies the challenge of proving a substantial injury to adjusters and juries. The first key to overcoming this challenge is to make the brain injury visible through the medical diagnostic testing described above, as well as perhaps 11 11
12 neuropsychological testing and medical expert testimony. Any abnormal brain imaging is key demonstrative evidence that should be blown-up or animated for a jury. Second, it is critical to show the impact of the brain injury on your client s life. This should be accomplished mainly by lay witness testimony of (preferably uninterested) family, friends, co-workers, colleagues, or whoever can best communicate the striking difference in your client before and after the trauma. A related challenge to representing brain-injured clients is that the client may be difficult and may make a poor witness in a deposition or in front of the jury due to the brain injury. Although defense counsel may try to attack the plaintiff for exhibiting poor attitude, judgment or decision-making, it is the plaintiff s counsel s job to show that such behavior and personality traits are one of the most serious consequences of the brain injury. Conclusion Despite the significant challenges in proving mild traumatic brain injury caused by motor vehicle accidents, such cases can be won through meticulous review of the medicine, relevant literature and available diagnostic tools, as well a deep understanding of the client, and all the ways the brain injury has impacted her life. Matthew A. Passen is a partner at Passen Law Group in Chicago where he represents individuals and families in serious personal injury, medical malpractice and wrongful death cases
13 TECHNOLOGY: TAKING ON... Continued from page 7 collision. Front crash avoidance also known as front collision avoidance mitigation systems were developed to provide an additional level of safety to alert drivers to an imminent front-end collision. As a properly equipped vehicle is driving forward, the system uses various types of sensors, cameras, and radar detectors embedded in the vehicle s front bumper and hood to detect when the equipped vehicle is getting too close to another vehicle in its path. The distance for activation depends on the vehicle s speed at that time and the speed of the vehicle in its path. When an equipped vehicle gets too close to the rear bumper of another vehicle, the system will warn drivers in a variety of ways. In the case of a properly equipped Mitsubishi vehicle, the driver will first be warned by an audible tone and a visual display on the dashboard. In addition, many vehicles will pre-charge the vehicle s brakes in order to maximize the braking effects, if and when the driver does respond by braking. If the driver fails to respond with braking, the system will then apply the brakes autonomously to mitigate the effects of a collision or prevent it altogether. This is an example of a passive system then becoming a quasi-active system to protect the vehicle s occupants and mitigate any collision. However, the driver retains full control of his or her vehicle. Nissan offers a type of forward collision avoidance system that the company dubs Predictive Forward Collision Warning. Nissan, Nissan installs a sensor in the front of its vehicles which analyzes the vehicle s relative velocity and distance to a vehicle ahead. If the system detects that the vehicle is traveling at a higher speed than the vehicle in front and a collision is imminent, it will sound an audible alarm as well as tighten the driver s seatbelt in efforts of gaining a driver s attention and thus be able to respond by applying the vehicle s brakes. As noted above, the increasingly wide spread use of cellular phones and mobile devices, along with onboard vehicle based electronic entertainment systems in vehicles can cause a driver to become distracted. Safety features, such as the front crash avoidance system, and the lane departure warning system appear to be two valuable aids in re-directing attention to the critical task of safely operating the vehicle in hopes of reducing a costly collision. There is evidence that these safety systems are actually helping to reduce collisions. In fact, recently Honda conducted a real-world study of their crash avoidance system, which included a study of both forward collision and lane departure warning systems. The systems were found to reduce insurance claims for damage to other vehicles by 14 percent and reduced injuries to occupants of equipped vehicles by 27 percent. Honda warning System Trims Insurance Claims, Highway Loss Data Institute (July 30, 2014). This study included a reduced insurance damage claim to both Honda vehicle owners and other vehicles involved. The Future As impressive as these passive and quasi-passive systems may be, the fact is these technologies may be just a rest stop on the road to a fully autonomous vehicle in the not too distant future. Numerous manufacturers are currently researching their own versions of fullyautonomous prototypes and the feasibility of such tasks. Most have focused their efforts in testing toward highway driving, where there is a minimal need for constant changes in speed and direction. By contrast, the software giant, Google is taking a different approach by testing their newest prototype, dubbed The Google Car, in city driving. While still in the infancy of its testing stage, the prototype is showing much potential. (Google, 2014) Which is the best approach? Is a fully autonomous vehicle needed to eliminate distracted driving? If so, what are the pitfalls of such systems when it comes to interacting with non-autonomous vehicles on the roadways? Consider the example of a four-way stop where, although another vehicle has the right-of-way, he or she waves you on, how would your autonomous vehicle respond to such a scenario? These are just some of the hurdles that must be conquered before such systems are even considered on our roadways. So just don t expect your car to drive you to pick up that Sunday morning Cup of Joe anytime soon. Brandon White can be reached at azsummitlaw.edu
14 WRESTLING WITH THE... Continued from page 8 Making a witness aware that the plaintiff s attorney will confront them with a safety rule that is difficult to reject is an important step in defusing the Reptile s effectiveness. The best way for a witness to handle a safety rule question is truthfully. Safety rules must be broad and be applicable to a wide variety of conduct. This means they necessarily lack detail. Essentially, they are vague hypotheticals and are most accurately answered with the legal standby: It depends. Safety rules, if properly composed, simply do not provide enough information for a witness to accurately answer yes or no. For example, Surgeons must always choose the safest possible surgery is a properly composed safety rule, but does not provide enough factual detail for a witness to honestly and accurately respond with a yes or no answer. Thus, the best way for a witness to handle the Reptile s safety rules is with honesty. Similarly, defense attorneys may be able to highlight the plaintiff s comparative fault by developing their own safety rules. In a trip and fall case, a defense attorney might propose the following safety rules: A pedestrian should be aware of where he or she is walking or It is unreasonable for a pedestrian to expect a sidewalk to be flawless. A third option is countering the Reptile by incorporating the appropriate standard of care into the defense s theme of the case. The Reptile attempts to develop a theme that requires the defendant to protect the plaintiff from any and all harm. In this way, the Reptile does not accurately portray the legal standard applicable to a case, and it is to a defendant s advantage to inform the jurors that the bar to recovery is not actually set so low. C. Does it Matter if the Reptile is Not Scientifically Valid? Several articles on the subject have attempted to discredit the Reptile by calling into question the validity of the underlying science that Keenan and Ball claim the strategy is based on. Neither author claims to have a background in neuroscience and MacLean s theory of the triune brain has been extensively criticized. However, whether or not the underlying science is valid may not be a point worthy of extended discussion. It seems clear that The Reptile is an effective trial strategy regardless of whether or not the underlying science is valid. What The Reptile really is, is a method of persuasion. Keenan and Ball may simply have suggested a more effective persuasive technique that focuses on why the defendant s conduct is blameworthy before attempting to elicit sympathy for the plaintiff by focusing on the severity of his or her injuries. Rather than a radically new tool grounded in neuroscience, the reptile method may simply be a new strategy that effectively applies sound psychological tools in a focused and effective manner. If that is the case, whether or not Kennan and Ball s science is valid is not relevant. Jon Woy is a Third Year Law Student at Temple University Beasley School of Law, and may be reached at VISIT US ON THE WEB AT:
15 December 2014 Joint Automobile Law and Staff Counsel Committee Newsletter Fall TIPS CALENDAR 8 TIPS Free Member Monday CLE Free Teleconference Sponsored by Aviation and Space Law Committee Contact: Ninah F. Moore 312/ Ethical Issues for Fidelity & Surety Attorneys Webinar Associated with Attorney Communications Contact: Ninah F. Moore 312/ January L.E.I. National CLE Conference Vail Marriott Resort & Spa TIPS Co-sponsored CLE & Ski Vail, CO Barbara Hollingsworth 888/ Why it Works and Why it Matters: Webinar The Business Case for Diversity Contact: Ninah F. Moore 312/ st Annual TIPS Midwinter Symposium Loews Ventana on Insurance and Employee Benefits Canyon, Tucson, AZ Contact: Ninah F. Moore 312/ Fidelity & Surety Committee Midwinter Meeting Waldorf Contact: Felisha A. Stewart 312/ Astoria Hotel New York, NY February ABA Midyear Meeting Hilton of the Americas Contact: Felisha A. Stewart 312/ Houston, TX Insurance Coverage Litigation Midyear Meeting Arizona Biltmore Contact: Ninah F. Moore 312/ Phoenix, AZ March Transportation Megaconference Sheraton Hotel Contact: Donald Quarles 312/ New Orleans, LA 15 15
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