More and more jurisdictions are requiring retailers use eco-friendly containers, packaging, etc.  In addition, business are voluntarily switching to those products as part of their sustainability strategy.  An important concern in the future will be whether these eco-friendly containers adequately and safely protect the public.  It wouldn't surprise me in the very near future to see a lawsuit arise out of a customer injury due to a weaker, biodegradable container that failed in some respect.  Many of our clients could find ourselves in the "chain of liability" lawsuit, including the retailer, the maker of the container, the maker of the materials, etc.  Exterior lighting of a retail establishment is another "green" issue retailers are facing.  Many cities and municipalities are requiring retailers to use less energy lighting their properties.

What has your company done or what have you advised your clients to do to protect against this liability?  What should trump...public safety or the environment? 

Christian Hardigree of Kennesaw State University will be addressing many of these issues during his discussion at the Retail and Hospitality Litigation and Claims Management Seminar in Chicago (May 7–8) titled The Legal Pitfalls of Going Green in the Food and Beverage Industry.


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Categories: Retail | Seminar

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It the fast-paced world of health care, it is easy to forget the simple things – like notifying your state licensing board about address changes. It seems trivial, but there may be consequences for a physician who fails to update her physician profile.

State medical boards have the responsibility and obligation to protect consumers of health care by ensuring that all licensed physicians comply with the laws and regulations related to the practice of medicine. These boards have a process for the public to submit formal complaints, and, once a complaint is made, the board conducts an investigation that includes contacting the physician for a response. But what happens when the physician does not respond?

In my practice of representing physicians before state boards, I have seen instances where the board has requested a response from a physician, and then was unable to locate her for months or a year or more. This is often due to the physician making a move and failing to update her address or physician profile. While this may seem like an innocuous oversight, it can result in significant consequences. In fact, many states have statutes and regulations in place mandating that physicians update their addresses with the relevant medical board within 30 days of relocating. Many physicians, however, do not realize the importance of updating their addresses.

A frivolous complaint made by a disgruntled patient can be easily disposed of with a conscientious response. However, if the physician fails to update her address, the board might not be able to contact her, resulting in a failure by the physician to respond in the requisite amount of time. Such a failure often leaves the board no choice but to take action against the physician, even where the complaint is obviously specious. The failure of the physician to update her status in and of itself could have a significant adverse effect, including public reprimand, monetary fines, impact on reputation, and loss of the ability to attract new patients, acquire affiliations or even obtain insurance coverage.

Another and more critical example is when a physician has an old address on file at the time of license renewal. If a physician does not get a renewal application and fails to renew her license, continuing to practice medicine is in fact practicing medicine without a license. Such an oversight is significant and could be career-ending.

With the prevalence of email communication, licensing boards are often able to notify a physician of a complaint or other issue through alternative methods. While the requirement for maintaining a current physical address is customary, the failure to update a change in electronic addresses is also problematic if an important email is not delivered and/or ignored. Being at the mercy of a state medical board for leniency after failing to respond in a timely manner to an inquiry due to a failure to update any address can be difficult.

A word to any wise professional – make sure the address on file with your state licensing board is up to date.

I will be attending the 2015 DRI Medical and Health Care Liability Seminar, March 12–13, 2015, in San Francisco, where Michael V. Favia, Esq. will present “Defense of Health Care Providers in Administrative Actions.” If you will be there, let me know.

This blog was originally posted to the Professional Liability Advocate blog. Click here to read the original entry. 


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Practice, Practice, Practice

Posted on January 13, 2015 04:44 by Andrew DeSimone

As kids, we heard this all the time, from parents and coaches.  “You will never get any better without practice”: from the piano, to baseball, to gymnastics.  Practice builds muscle memory, and without that practice, without that muscle memory, performers and athletes cannot excel, be it at Carnegie Hall or during March Madness.

As attorneys, our jobs require the same attention to practice, practice, practice.  We need muscle memory to help us through stressful or surprising situations that invariably arise in depositions, at court hearings, or at trial.  How do you conduct a successful voir dire? How do you properly impeach a witness with a deposition?  How do you conduct a Daubert hearing to have plaintiff’s expert excluded at trial?  Without it, trial attorneys confronted with a “surprise” cannot adequately represent their clients.  

In a recent blog post, Chris Bottcher, Chair of the Trial Tactics Committee, discussed the major problem facing litigators today: the lack of exposure to trials and other hearings necessary for attorneys to hone their skills. However, the 2015 Trial Tactics Seminar offers a great opportunity for attorneys of all experience levels to practice, practice, practice their litigation skills. Topics include conducting a Daubert hearing, dealing with surprises at trial, how to conduct a successful voir dire, and many, many others.  

The 2015 Trial Tactics Seminar will be held at Caesar’s Palace Las Vegas, March 18–20, 2015. It happens to be during March Madness. So while you learn from leading trial lawyers across the country to help you build the necessary muscle memory to succeed as a litigator, the top college basketball athletes will be putting their skills to the test after years of practice, practice, practice.  The program will be great. It will be a unique opportunity to learn, connect, and grow. Hope to see you there.  


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Categories: Seminar | Voire Dire

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My DRI Seminar Experience

Posted on January 7, 2015 10:10 by Denise Holzka

While I’m a bit freaked out to acknowledge this milestone, just about ten years ago I attended my first DRI Medical Liability and Health Care Law Seminar.  The following year I was given the opportunity to present at the Young Lawyers Breakout session.  Fast-forward several years later and I was speaking at the main gig for the not-so-young lawyers.  Presenting at both of these conferences, and attending many more, was instrumental in my development as a litigator in this field.  While the preparation of the materials and the presentations added a bit of stress to my otherwise stress-free existence as a New York trial lawyer, it was the productive type.  I wanted to ensure that if I was about to take up an hour of my peers’ time, that I better be a good presenter and have some incredibly useful information to convey.  Although I am modest, I nailed these presentations!  

Presenting and attending DRI’s Medical and Health Care Law Seminar has truly made me a better lawyer and advocate for my clients.  Many of the individuals I met the first time I presented have become life-long friends and colleagues.  As such, I am able to reach out to a diverse network of friends from all over the country whether to discuss business, experts, complex medicine or locate an establishment in their neighborhood to get an adult beverage.  

Personally, perhaps most rewarding, presenting at this seminar allowed me to take the time to appreciate the really important work that we do and the medical institutions and healthcare practitioners we represent.  We are generally so caught up in our work that we forget that we are an integral part of the delivery and quality of medical care.  It is a privilege to practice in this field as it was to present at prior DRI Medical Liability and Health Care Law Seminars.  I encourage you to attend this seminar with assurance that you will meet other professionals who are passionate about the work we do and will undoubtedly provide you with information to hone your skills.


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Attorney-client privilege and the work product doctrine are essential to the success of every lawyer’s practice and every client’s case.  Attorney-client privilege—the oldest common law privilege relating to confidential communications—was established to encourage free and frank discussions between attorneys and their clients.  The work product doctrine offers broader protection of documents and other work that attorneys prepare in anticipation of litigation.  These seemingly simple principles are fraught with practical pitfalls, and they are often further complicated by the involvement of and communications between co-clients, joint clients, corporate clients, or third-party consultants. Today’s attorneys face even greater risks in this era of digital and instantaneous communication. Now more than ever, it is imperative that attorneys remain watchful for situations that threaten the privilege.

How do we recognize these risks and avoid them before it’s too late?  Are there any prophylactic measures we can take to protect the privilege and our own work product?  The 2015 DRI Women in the Law Seminar will focus its attention on Partnering with the Client for Success and includes a session devoted to preserving the attorney-client privilege. Our panel of in-house and outside counsel will explore real-world scenarios that could jeopardize the privilege, and share practical strategies for protecting clients’ privileged communications and work product.  In addition to this engaging session, the Women in the Law Seminar is devoted to providing concrete, actionable guidance on legal issues and emerging trends that keep clients (and their counsel) up at night.  The seminar also offers ample opportunity to connect corporate counsel and outside lawyers to enable us to partner with each other for success.

The 2015 Women in the Law Seminar will be held February 25-27 at the Hyatt Regency Pier Sixty-Six in Fort Lauderdale, Florida.  It is a terrifically convenient oceanside location just a short ride from the Miami airport. Register today by visiting http://www.dri.org/Event/20150208.

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Categories: Seminar | Women in Law

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Catastrophic injury cases with expensive life care plans pose significant exposure issues to our clients. The Affordable Care Act guarantees consumers the right to purchase health insurance and caps annual out-of-pocket medical expenditure, thus limiting future medical care costs for plaintiffs. The enactment of the ACA should mean that future medical expenses are limited to the cost of the plan to the plaintiff. But, do the courts view the ACA as collateral source, meaning that the plaintiff can still recover all of the future medical costs, despite being covered by insurance?

Come to the DRI Medical Liability and Health Care Seminar at the Parc 55 Wyndham San Francisco, CA from March 13–15, 2015, and listen to the presentation by Victor A. Matheson, PhD and Jon Karraker, CPA discuss these issues and more. 

Resister today at http://www.dri.org/Event/20150175; don’t forget to book your hotel room at the Parc 55 Wyndham.


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How Do You Keep Your Edge?

Posted on December 4, 2014 08:18 by Christopher A. Bottcher

Juries resolve very few cases these days.  Statistics confirm that fewer civil cases are tried to verdict every year, and that only a small fraction of civil cases ever reach a jury.  With litigation costs rising every year, and corporate budgets remaining flat or declining, that downward trend is likely to continue.

This trend has huge implications for those of us that make our living as litigators.  How do we develop and sharpen our skills?  How do law firms develop the next generation of trial lawyers in an environment that is dominated by settlements and ADR?  In years past, young lawyers learned by observing their partners in trial.  War stories supplemented their education.  However, the paucity of trials has limited these opportunities.  

DRI’s Trial Tactics Committee is dedicated to helping trial lawyers maintain their edge.  We do this by drawing on the experience and creativity of nationally recognized trial lawyers, consultants, experts, and in house counsel who share their knowledge and expertise at seminars, in webinars, and through publications. In 2014, Trial Tactics put on an interactive mock trial, complete with a judge and jury, which allowed attendees to observe and critique the tactics and techniques of dozens of experienced lawyers from around the country as they tried a case from voir dire to verdict.  Attendees gave the program rave reviews.  Many said it was the most informative CLE they had ever attended.

The 2015 Trial Tactics Seminar will continue DRI’s legacy of sponsoring outstanding, skills-based programming. This year, the Trial Tactics Seminar will include an interactive voir dire workshop, a mock Daubert hearing, as well as presentations on creative ways to present complex facts to jurors and to handle surprises at trial. The faculty will include a former US Attorney, a federal judge, in house counsel, and leading trial lawyers from across the country. In addition, this year’s program will include “Learning from Others” modules, which will be presentations by litigation sub-specialists who will teach tactics and techniques that are common in their practices, but which can also be helpful in a broader spectrum of cases.  

The seminar will be held at Caesar’s Palace in Las Vegas, March 18-20 – during March Madness. It promises to be a great program and a unique opportunity to learn, network with potential clients and referral sources, and reconnect with old friends. I hope to see you there. 

 

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Categories: Daubert | Seminar | Toxic Tort

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In his recently-published book, Cybersecurity for Executives: A Practical Guide, Retired Brigadier General Gregory Touhill, now Deputy Assistant Secretary at the Department of Homeland Security Office of Cybersecurity and Communications, offers the following quote from Congressman Mike Rogers, Chairman of the House Intelligence Committee, on the state of cybersecurity: “There are two kinds of companies. Those that have been hacked, and those that have been hacked but don’t know it yet.”  What makes the quote particularly interesting? It is from 2011 – long before the headlines regarding Target, Ebay, and Adobe. Not to mention the recently reported efforts of Russian and Chinese hackers. In light of all these events, the question arises “how concerned should directors and officers be about cybersecurity?” Most experts would respond, “very.” 

In October 2011, the SEC Division of Corporate Finance issued its Disclosure Guidance on cybersecurity. The Guidance suggested several risk factor disclosures, including a discussion of material cybersecurity risks to a registrant’s business or operations, a description of cyber incidents experienced by the registrant, and a description of relevant insurance coverage.  A report prepared by the insurance brokerage firm Willis in August 2013, based on a review of 10-Ks and annual reports filed by the Fortune 1000, suggested that companies were describing the possibly material risks to their businesses in broad terms, but were not adequately disclosing actual cyber events or their cyber-related insurance coverage.  Notably, only a few months prior to the Willis report, SEC Chairman Mary Jo White asked her staff to brief her on current cybersecurity disclosure practices for publicly-listed companies, and to provide recommendations for further SEC action. 

Significantly, in a speech delivered in June 2014 at the NYSE “Cyber Risks and the Boardroom” Conference, SEC Commissioner Luis Aguilar suggested one source of guidance for boards regarding cybersecurity.  In February 2014, the National Institute of Standards and Technology (NIST), pursuant to an Executive Order from President Obama, released the first version of the Framework for Improving Critical Infrastructure.  The NIST Framework is intended to provide companies with a set of industry standards and best practices for managing their cybersecurity risks. In his speech at the NYSE conference, Commissioner Aguilar noted, “While the Framework is voluntary guidance for any company, some commentators have already suggested that it will likely become a baseline for best practices by companies, including in assessing legal or regulatory exposure to these issues or for insurance purposes.”   In concluding his speech, Commissioner Aguilar cautioned board members, “Given the heightened awareness of these rapidly evolving risks, directors should take seriously their obligation to make sure that companies are appropriately addressing those risks.”

The obvious takeaway from all of the above is that directors and officers (and their counsel) need to remain closely attuned to both current and future guidance from the SEC both in terms of meeting their obligations to address their company’s own cybersecurity and with respect to their disclosure and reporting obligations regarding cybersecurity.

Finally, anyone interested in understanding the latest developments in cybersecurity, data breaches, privacy law, and related insurance issues should consider attending DRI’s inaugural Data Breach and Privacy Law Seminar in Chicago on September 11-12, 2014. For more information and to register, go to: http://www.dri.org/Event/20140065

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Categories: Privacy | Seminar

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The Employment and Labor Law Committee is one of several DRI committees participating in DRI's inaugural Data Breach and Privacy Law Seminar, September 11-12, 2014 in Chicago.  Click here to sign up

It seems like every day when we open a newspapaer or turn on the TV, there is another report of a significant data breach, followed by customer outrage and lawsuits!  This seminar will offer presentations from data security and privacy professionals who are at the forefront of cutting-edge data security and privacy issues, as well as industry leaders who will provide valuable insight and practical experience.  I encourage you to attend.   

Attendees will learn from real world scenarios and obtain concrete takeaways to aid in understanding and navigating the field of data security, including presentations on topics such as: 

The "science" of cyber attacks

Industry standards for privacy and data protection

Theories of civil liability and data security breach

Technical requirements for the protection of health records

Effective strategies to respond to data breach incidents, including insurance coverage

Data security ethical issues

The seminar will be an excellent educational and networking opportunity for everyone who attends.  Our committee helped shape the topics and I know you will benefit from attending.

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Categories: Privacy | Seminar

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Earlier this week, the ABA adopted a resolution encouraging all private and public sector organizations, including law firms, to adopt appropriate cyber security programs. An accompanying report cites the growing sophistication and frequency of cyber crimes. It notes, in particular, the importance of law firms to be proactive in protecting sensitive client information. According to the report, as many as 80 law firms were hacked in 2011 alone. The ABA’s report cites the ethical obligations of attorneys both to understand the risks of modern technology and to adequately protect client information. 


DRI is getting out in front of cyber risk issues. It is launching its first ever Data Breach and Privacy Law Seminar, September 11–12, at the Conrad Chicago. The seminar will address cyber risks, theories of liability for data breaches, preparing in-house response plans, insurance coverage for cyber crime, and other issues relating to data security. The seminar brochure provides registration details. Anyone involved in law firm or corporate risk management and any lawyer advising or representing clients on these issues should attend.

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