Public respect and trust: how to restore and deserve itкод для вставки
Public respect and trust: how to restore and deserve it By David Ball David Ball, Ph.D., of Miller Malekpour & Ball in Durham, is one of AmericaвЂ™s most-respected trial consultants, a three-time bestselling trial advocacy author and jury researcher. His book,вЂњDavid Ball on Damages,вЂќhas changed the face of American trial advocacy, and he is the countryвЂ™s most in-demand CLE lecturer. In 2002 he received NCATLвЂ™s Charles Becton Excellence in Teaching Trial Advocacy award. With partners Debra Miller and Artemis Malekpour, he consults on civil and criminal cases throughout the U.S. and Canada. This article was originally prepared for North Carolina Advocates for Justice - originally called the North Carolina Academy of Trial Lawyers вЂ“ and is reprinted with the gracious permission of that organization as well as Dr. Ball. Talk doesnвЂ™t cook rice. вЂ”Chinese proverb Deeds, not Words вЂ”Max Roach (American jazz musician and composer) You know IвЂ™ve heard every line No baby, not this time If you want me like you say you want me Well then, you gotta show me . . . . I see you there talking loud But you got to show me. вЂ”Janet Jackson Please donвЂ™t explain. Show me! вЂ”вЂњMy Fair LadyвЂќ Nay, Everyman, I will bide with thee, I will not forsake thee indeed; Thou shalt find Good Deeds a good friend at need. вЂ”the character Good Deeds in вЂњEveryman,вЂќ a medieval drama The Lord is a God who knows, and by Him deeds are weighed. вЂ”1 Samuel 2:3 Just do it! вЂ”Nike Words are no deeds. вЂ”Shakespeare (вЂњHenryVIII,вЂќIII,2) Words to the heat of deeds too cold breath gives. вЂ”Shakespeare, (вЂњMacbeth,вЂќII,1) Talk is gibber-jabber.Action is truth. вЂ”Catherine Walsh, 3rd grade teacher There is no effective weapon against the persuasive power of good works. вЂ”David Ball The problem A third of jury-eligible Americans hate and fear trial lawyers.This is because of what they think you do. That thirdвЂњknowsвЂќyou endanger their well being: their jobs, their health care, their families, their religion. TheyвЂњknowвЂќyou make your exorbitant living though trickery and sham cases.TheyвЂњknowвЂќyou profit from the misery of others. A decades-long campaign against you has brought them to this point. That campaign вЂ” carefully planned and executed вЂ” was unchallenged until a few years ago. By then it was too late to talk our way out of it.The decades-long, one-sided case had job opportunities and civic engagement his top priorities.The governor created theвЂњCommonwealth Readiness Project,вЂќa 10-year strategic plan for the future of education in Massachusetts that will strive to revitalize the state public education system to world-class level. He has launched a website to give assistance to parents and students in securing education loans and has signed both an early education bill as well as a higher education bond bill to insure that education remains at the forefront of DeLeo awarded at annual dinner вЂ” more photos on page 8 Trial Guides point the way By J. Michael Conley Continued on page 10 Excellence in Leadership Award presented to Governor Patrick The Massachusetts Academy of Trial Attorneys selected Gov. Deval L. Patrick to receive its first-ever Excellence in Leadership Award. The award was created to recognize the leadership, commitment and dedication to the people by those elected to public office. Patrick embodies all of these qualities and continues to work tirelessly to improve and expand state government services to address the needs of all Massachusetts residents. Since taking office in January 2006, Patrick has made education, June 2009 | Vol. 3, No. 1 his administrationвЂ™s agenda. Job creation and economic growth in Massachusetts have been a large part of the Patrick administrationвЂ™s agenda, even more now than when the governor began his term in 2006.The Patrick-Murray administrationвЂ™s Emergency Recovery Plan was created with Senate President Theresa Murray and is a multipronged strategy, including a FY2009 budget solve and the FY2010 budget, as well as a number of cost-saving measures and proContinued on page 6 Fighting a case of Old Dog Syndrome, and hoping to win a few more trials, I have started going to more seminars, reading more books, watching more video вЂ” trying to get beyondвЂњthe lawвЂќand generic trial techniques, and focusing specifically on how to win plaintiffsвЂ™personal injury trials. It soon became apparent that a new publishing company predominates this niche, publishing and distributing some of todayвЂ™s most important plaintiffsвЂ™trial materials вЂ” Trial Guides. Trial Guides describes itself asвЂњa new, cutting edge, legal media company dedicated solely to helping civil plaintiffs win.вЂќThe companyвЂ™s website declares,вЂњPlaintiffвЂ™s law is our passion вЂ” we want to help you and the people you serve.вЂњ In other words,Trial Guides is for us! Trial Guides, based in Portland Oregon, started in 2003 with Aaron DeShawвЂ™s book Colossus: What Every Trial Lawyer Needs to Know. Since that time the company has focused only on creating and distributing products for plaintiff trial lawyers (in some instances actually restricting sales to lawyers who represent plaintiffs only). A review of the Trial GuidesвЂ™catalogue tells us that in a short time the company has greatly advanced its mission. David Ball on Damages The Essential Update вЂ” which some say revolutionized the courtroom for plaintiffsвЂ™ attorneys вЂ” is absolutely essential and available through Trial Guides in book or audio, as are other David Ball books, CDs and DVDs concerning courtroom trial practice, jury research and focus groups. Rick FriedmanвЂ™s must-read trilogy вЂ” Rules of the Road (with Patrick Malone), EDITORвЂ™S NOTE Continued on page 6 A Supplement to Massachusetts Lawyers Weekly MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 2 JUNE 2009 MATA honors House Speaker Robert A. DeLeo The Massachusetts Academy of Trial Attorneys presented Massachusetts Speaker of the House Robert A. Deleo with its 2009 MATA State Legislator of the Year award at their annual dinner on May 6 at The John F. Kennedy Library. DeLeo has represented the 19th district/Suffolk, including the town of Winthrop and a portion of the city of Revere, since 1991. An alumnus of the Boston Latin School, DeLeo graduated from Northeastern University and Suffolk University Law School. Prior to becoming speaker in January 2009, DeLeo served as the chairman of several House committees, including the Committee on Ways and Means, the Committee on Bills in the Third Reading, the Joint Committee on Local Affairs and the Ethics Committee. He also served as chairman and was a founding member of Breast CancerвЂќpledge drive. M.W.R.A. Legislative Caucus, the Legislative Caucus on Air Transportation and the LegislaDeLeo is a past recipient of the Massachusetts tive Caucus on Older CitizensвЂ™ Concerns. Bar Association Legislator of the Year Award, the Before his tenure on Beacon Hill, DeLeo AMVETвЂ™S Legislative Pilgrim Award, the Masserved on the town of WinthropвЂ™s Board of Sesachusetts Municipal Association Legislator of lectman. Since 2001 he has served on the Year Award, the Veterans Agent the Board of Directors of the Greater Legislator of the Year Award, the MasBoston Association for Retarded Citisachusetts Developmental Disabilities zens and the Epilepsy Association of Council and Arc Massachusetts LegisAmerica Inc. He is a member of the lator of the Year Award, the Winthrop Revere League for Special Needs, the Council on Aging Award of AppreciaWinthrop Elks and is president of the tion and the Massachusetts Boating Winthrop Friends of the Council on and Yacht Clubs Association Legislator Aging. Each year, he sponsors the of the Year Award. DeLEO State Legislators and Veteran Agents During his tenure as speaker, Annual Luncheon at the State House and DeLeo has targeted ethics, transportation and sponsors a team of walkers for the American pension reform. One of his first acts was to inCancer SocietyвЂ™sвЂњMaking Strides Against stitute a maximum limit on the speakerвЂ™s term, capping it at eight years. His understanding and experience with a multitude of issues makes him an invaluable asset to both his own constituents as well as the citizens of the state of Massachusetts. Throughout his political career, Robert DeLeo has made helping people in need a priority, and he continues to honor that commitment as speaker of the house. The MATA Legislator of the Year award is given to a lawmaker who has made noteworthy contributions to the people of Massachusetts during his or her tenure. It is with great pleasure that we present Robert A. DeLeo with the 2009 MATA State Legislator of the Year Award for his commitment to the people he represents, his achievements on their behalf and his belief in public service. We are fortunate to have him as a member of the Legislature. Mary K. Hickey recognized for courthouse management tion, the Massachusetts Association of Women Mary K. Hickey has held the position of first Lawyers and the Massachusetts Bar Associaassistant clerk of Norfolk Superior Court since 1991, having starting her career there in 1973 as tion. She served on the Supreme Judicial CourtвЂ™s Advisory Committee on Ethical Opina junior file clerk. A graduate of Framingham ions for Clerks of Court from 1990 until 2007. State College in 1978 and of Suffolk University Hickey worked as a dispute resoluLaw School in 1981, she has dedicattion coordinator for Norfolk Superior ed herself to working in the justice Court and a coordinator for Americans system. with Disabilities. She also served on Hickey was selected as the recipithe Impounding and Sealing Task ent of the 2009 MATA Excellence in Force for the IT project Advisory Courthouse Management award. Board, the Participant Ownership Task She is an outstanding example of Force for the IT Project Advisory Board someone who strives every day to HICKEY and the special Evaluating Justice: Civmake the judicial system work for all il Case Adjudication in Massachusetts. involved. Her many years at Norfolk A member of the Supreme Judicial Court Superior Court have provided her with the exSteering Committee on Self-Represented Litiperience and expertise that is her trademark to gants, the Court Personnel Working Group, the all fortunate enough to know her. Bench Bar Committee for the Norfolk Country Hickey served as president of the Norfolk Bar Association and the Norfolk County SupeCounty Bar Association from 1999 to 2000 and rior Court 150th Anniversary Committee, Mary is an active member of the Quincy Bar Associa- K. Hickey is deeply involved in all aspects of the courthouse business. The MATA Excellence in Courtroom Management award is presented to a courthouse professional who goes above and beyond the mere description of her job and dedicates herself to enhancing and improving the judicial system for all involved. The academy was honored to present Mary K. Hickey with this prestigious award at the MATA annual dinner on May 6 at The John F. Kennedy Library in Boston. PRESIDENT Mary Jane McKenna, Esq. PRESIDENT-ELECT Upcoming events Chris A. Milne, Esq. TREASURER Kimberly E. Winter, Esq. SECRETARY July 25-30 AAJ Annual Convention San Francisco, Calif. Andrew M. Abraham, Esq. IMMEDIATE PAST PRESIDENT Paul F. Leavis, Esq. October 5 MATA Golf Tournament Ipswich Country Club November 4-8 15-18 MATA Bermuda Conference Elbow Beach Resort & Spa NATLE/AAJ Government Affairs Conference Austin, Texas EDITOR-IN-CHIEF J. Michael Conley, Esq. PUBLISHER/EDITOR Jennifer L. Comer PRINTING AND PRODUCTION Massachusetts Lawyers Weekly JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3 Major strides, big battles By Mary Jane McKenna This has been a year of major success both in the Commonwealth and nationally. At the same time, we face continuing tough battles on the home front and as across the nation as we strive to protect the rights of consumers. On March 4, the U.S. Supreme Court handed down its life saving opinion in a 6-3 decision in favor of the plaintiff, Diane Levine, in Wyeth v. Levine. This long and anxiously awaited opinion upended the momentum following Reigel v. Medtronic and the efforts of corporations to protect themselves and expose the consumer to unbridled tortuous conduct without rightful remedy for injury. Contrary to the holding in Levine, the Court held that FDA drug regulation does not preempt common law claims for damages under state law. In their opinion, the Supreme Court provided the following case background: вЂњThe Petitioner Wyeth manufactures the anti-nausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the вЂ�IV pushвЂ™ method, whereby a drug is injected directly into a patientвЂ™s vein, the drug entered LevineвЂ™s artery, she developed gangrene and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that LevineвЂ™s injury would not have occurred if PhenerganвЂ™s label included an adequate warning and it awarded damages for her pain and suffering, substantial medical expenses and loss of her livelihood as a professional musician. Declining to overturn the verdict, the trial court rejected WyethвЂ™s argument that LevineвЂ™s failure-to-warn claims were preempted by federal law because PhenerganвЂ™s labeling had been approved by the federal Food and Drug Administration. The Vermont Supreme Court affirmed.вЂќ The Supreme Court held that federal law does not pre-empt LevineвЂ™s claim that PhenerganвЂ™s label did not contain an adequate warning about the IV-push method of administration. This decision will immediately impact residents of the Commonwealth and all those injured because of pharmaceutical torts. We hope that the impact will be felt in the future and affect other areas of products liability. Justice for consumers! Also of magnitude is the introduction in the Senate by Senators Kennedy and Leahy of Senate Bill 540 and the introduction in the House of Representatives by Representatives Waxman and Pallone of Bill 1346, the Medical Device Safety Act. This bill would restore rights of patients injured by defective medical devices. The act will provide consumers the protection of state laws when they have been injured by a defective medical device, whether it is a defective implantable cardiac defibrillator, prosthesis or any of the myriad of products utilized in the medical care of consumers. It is of vital importance that consumers and their advocates back this bill with vigor. Another very important bill was recently introduced in the House and Senate, HR 1237 and S. 512, respectively, the Nursing Home Arbitration Act. If enacted, this legislation would end another wrong to consumers and their elderly and most vulnerable loved ones. Binding mandatory arbitration agreements in nursing home contracts would be prohibited. Here at MATA, we are particularly proud of our successful efforts in fighting a number of pieces of legislation introduced over the past year with the intent of undermining and eroding consumer rights. In early January the governor pocket vetoed a bill containing language that would have changed the negligence standard for removal of snow and ice from sidewalks from the current ordinary negligence to gross negligence. Recently, the insurance commissioner reversed her decision to dismantle the Board of Appeals for motor vehicle policies and bonds. Other anti-consumer leg- islation included attempts to cap damages, restrict the rights of those injured by defective products, expand immunity for special interest groups and reduce the statute of limitations for certain entities. But there is still much hard work to be done. Numerous bills are pending that relate to the area of medical negligence which would limit the rights of patients and families. This is an arena that is a constant battleground about which we must be ever vigilant. Last year we faced over 70 pieces of legislation and because of the diligence and dedication of so many, with particular credit going to attorney Timothy Kelleher, the Academy played a vital role in advocating for the rights of consumers. Recently, the governor filedвЂњAn Act to Reform, Rebuild and Renew the Transportation System of the Commonwealth for the 21st Century.вЂќ This extensive and complex piece of legislation intended to streamline the transportation system raises challenges for all consumer advocates and has the potential to impact the landscape of consumer rights like no other piece of legislation to date. Sections 45, 48 and 49 of the bill limit the potential civil liability of virtually all Massachusetts common carriers and eviscerate protections provided to the public. If enacted, this legislation would bring independent authorities such as the MBTA and the Turnpike Authority under the department of transportation, imposing on victims of malfeasance a $100,000 state agency cap. This stands in contrast to the interests of the Academy in holding providers of public transportation to the highest standards of public safety. Members of the Academy have dedicated countless hours to the analysis, preparation and presentation of testimony in response to this complex legislation, which, if enacted, will deprive our citizens who rely so heavily on a daily basis on public transport of protection from injuries due to the negligence of common carriers. We are particularly grateful for the work of Kelleher, Neil Sugarman and our lobbyists, Jim Morris and Chris Kozcela. PRESIDENTвЂ™S MESSAGE Structured Settlement Expert Structured settlements demand expertise. The stakes are high. Ensure your client gets the best possible advice from a proven expert. Whether you represent the claimant or defendant, we will give you independent advice to determine the true value of an offer and design the ideal payment structure for your clientвЂ™s needs. Full-service consultation & in-person mediation support are covered within the structured settlement. There is no additional cost to you or your client. Chris Seeley and Seeley Capital Management have successfully arranged some of the largest and most high-profile structured settlement cases in the Northeast. Seeley Capital Management 1500 Main Street вЂў Springfield, MA 01115 вЂў (877) 295-1918 email@example.com вЂў www.seeleyinvestments.com Further, a number of important opinions from the Supreme Judicial Court supported by amicus curiae briefs from the Academy have and will continue to bolster consumer rights, beginning with Coombes v. Florio, 450 Mass. 182 (2007), in which the Supreme Court confirmed that a physician could be liable to a third party injured by a patient who was prescribed medication without adequate warning of side effects. Changing the legal landscape was Matsuyama and Renzi, (Matsuyama v. Birnbaum, 452 Mass. 1; Renzi v. Paredes, 452 Mass. 38, 2008), which established a new law making the loss of chance of survival a cognizable claim. We thank Attorneys Max Borten, Annette Gonthier Kiely, Michael Harris and J. Michael Conley on behalf of theAcademy. Most recently, in Law v. Griffiths, the court addressed the issue of whether a trial judge erred in excluding evidence of medical expense offered pursuant to G.L.c. 233 В§79G because the amount actually paid was less than the face value of the bill. Because of the work of Kathy Jo Cook and Michael Najjar, who co-authored the brief on behalf of the Academy, 79G-certified bills come in as evidence of medical expenses per statute. This matter will now be heard by the SJC. Recently, Jeffrey Beeler, on behalf of the plaintiff with an amicus by J. Michael Conley for MATA,. filed briefs in Dean Leavitt v. Brockton Hospital, Inc related to the Coombs case, but with a different theme вЂ” the rescue doctrine. We look forward to the courtвЂ™s opinion on this important issue. It has been extremely encouraging to see a positive trend in plaintiffsвЂ™ verdicts across the commonwealth by MATA members. These results were the fruit of great labor and reflect the growing skills, strength and commitment of the plaintiffsвЂ™ bar to their clients and the citizens of the commonwealth. There are so many initiatives to which we are dedicated, including the expansion of attorneyassisted and attorney-conducted voir dire. We are particularly grateful for the work of Mark Continued on page 5 MDRS. Resolving disputes effectively and fairly since 1991 Over 7,500 cases have been resolved by our MDRS panel of mediators and arbitrators. Experience makes the difference for you and your clients. We get the job done. Attorney Brian R. Jerome Principal Mediator-Arbitrator 800-536-5520 www.mdrs.com Hearings throughout Massachusetts DISPUTE MASSACHUSETTS RESOLUTION SERVICES MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 4 JUNE 2009 MATA remembers the late Reginald C. Lindsay вЂњJus tice is the g r eat inter es t of m an on ear thвЂќ вЂ” Dan iel Web ste r U.S. District Court Judge Reginald C. Lindsay left a powerful legacy when he passed away far too soon and far too young on March 12 at the age of 63. Originally from Alabama, he graduated from Morehouse College in 1967 and from Harvard Law School in 1970. Lindsay spent the majority of his pre-judicial legal career in private practice from 1970 to 1975 and 1977 to 1993. He was appointed by Gov. Michael Dukakis to serve as the state commissioner of public utilities from 1975 until 1977. On the unanimous recommendation of U.S. Senators Edward Kennedy and John Kerry, Lindsay was nominated by President Bill Clinton on October 27, 1993, for a federal judgeship. From 1993 to 2008, he brought his love of the law and of justice to his courtroom, serving as an inspira- assigned. The program was named in tion to his peers and a fair and just honor of the late David S. Nelson, the man to all who appeared before him. first African-American to sit on the Lindsay grew up in a segregated U.S. District Court in Massachusetts town in Alabama and his experience and whose seat Judge Lindsay took and life lessons made him all the over in 1993. This special youth promore dedicated to the law and to the gram was overseen by Lindsay, Judge importance of all peopleвЂ™s access to Patti B. Saris and Chief Judge Mark L. the courthouse and to justice. Lindsay Wolf. Lindsay was also a strong suphad been in a wheelchair since 1983, LINDSAY porter of the charity Partners forYouths when he was diagnosed with a tumor with Disabilities. on his spine. From all accounts, that change in his life did nothing to slow him down or In recent years, Lindsay became known for his to change his course as a lawyer and judge. rulings in landmark cases brought by the families Lindsay was known for his great work with of people allegedly killed by Boston career criminal young people. One of his favorites was a fellowJames (вЂњWhiteyвЂќ) Bulger and members of his gang. ship program offered by the U. S. District Court for Judge Lindsay found the FBIвЂ™s corrupt relationship Boston high school students. This program was with Whitey Bulger, an FBI informant, made the the only one of its kind in the federal court system, FBI liable for two of the deaths. In 2006 he awarded enabling students to spend the summer learning $3.1 million to the family of FBI informant John about the law from the judge to whom they were McIntyre, a fisherman from Quincy. In an effort to make people understand the difference between right and wrong, Lindsay asked the Department of Justice to compensate the families of informants who were murdered after an FBI agent gave information about them to the criminals under investigation. He finally ordered the government to pay significant damages, a decision that was affirmed by the 1st U.S. Circuit of Appeals. The 2009 MATA Judicial Excellence Award is presented to that judge who inspires people both in and out of the courtroom. U.S. District Court Judge Reginald C. Lindsay was the kind of judge who cared about the people that came into his courtroom, their stories, their lives and their futures. He was a unique individual who left his indelible imprint in both the courtroom and in life. Lindsay brought an invaluable combination of experience with the law and an unshakable belief in humanity to the courtroom. We honor him as a person, a lawyer, a judge and a mentor. He defines judicial excellence. Loewinthan recognized for courageous advocacy Dr. Peter F. Loewinthan was selected as the recipient of the 2009 MATA Courageous Advocacy Award, created to recognize and honor those who have made a difference in the lives of others. Loewinthan graduated from Brandeis University in 1965 and Tufts Medical School in 1971. He did his internship at Boston Floating Hospital and remained in the Boston area, teaching at various hospitals, including Boston City Hospital, New England Medical Center and Boston University School of Medicine. Loewinthan also taught at Dorchester neighborhood schools and centers, including the Mather School, the Grover Cleveland School and the Dorchester House Multi-Service Center. He has remained at The Dorchester House since 1974, where he served first as medical director and then as chief of pediatrics. He was the first full-time doctor at Dorchester House at that time. Centering his practice on pediatrics, Loewinthan chose to stay at Dorchester House because he felt it was where he could do the most good. He is now treating his third generation of children in Dorchester. make a difference and improve the lives of the In 1999 Loewinthan began another project in people he had come to care for in just one visit. Nicaragua, where he stayed for a month to improve his Spanish and volunteer at a medical faWhen he came back to Dorchester House he cility. During his travels he met a doctor who was was already planning his next trip to Nicaragua going to volunteer in an area clinic outside the and brainstorming as to how to make a pilot clinic city that was badly in need of medical volunprogram work and to get medical supplies and teers. Loewinthan decided to accomdrugs donated. Loewinthan realized the pany him and spent the following importance of the work in Nicaragua month treating children whose living and began an ongoing campaign to conditions were extremely unhealthy. help the people who came to the clinic for medical care and also for informaThat first month, Loewinthan realtion. He was in touch with a group of ized that as much as he was trying to women in those first few years called keep the children in the clinic healthy, вЂњSuperemos,вЂќwho were focused on they were returning to an environLOEWINTHAN helping women and children obtain ment that would only send them back many forms of assistance and education to the clinic with the same medical to give their families a better and healthier life. problems. He learned the children and female population of the area needed assistance on the Loewinthan started working with the local most basic of levels. He discovered he could groups in Nicaragua and was able to get friends, write a prescription but the family could not affamily members and colleagues to donate mediford to have it filled nor was there anywhere cine and medical supplies and also involved Project nearby to get it filled. Loewinthan decided to try Hope and Americares for additional contributions. and change the medical clinics, improve services Within a few years of his annual visits, Loewinthan and offer family care. He was determined to had started a pilot program running two clinics in rural areas and two others in urban areas. These clinics dealt with the pervasive issues of nutrition, parasites, dental care and family size. The clinics educated the mothers on preventative visits for children with lice, scabies and parasites, as well as ongoing dental preventative habits. On some trips Dr. Loewinthan was joined by other doctors and medical students. In a show of support for LoewinthanвЂ™s project, the employees of Dorchester House became ongoing contributors and became the third leading funder of the clinics in Nicaragua. Dr. Peter F. Loewinthan is a pediatric doctor who loves what he does at both The Dorchester House and at the clinics in Nicaragua. His work and ongoing care and support of both these entities exemplify his dedication and determination to provide healthcare to children in need everywhere. His achievements and history of service in the medical field are immense. It was with great admiration that the Academy presented Dr. Peter F. Loewinthan with the 2009 MATA Courageous Advocacy Award on May 6 at the MATA annual dinner at The John F. Kennedy Library in Boston. DEPOSITION AND VIDEOCONFERENCING SUITES DISPUTE RESOLUTION LLC YOUR COMPLETE COURT & LITIGATION SUPPORT SERVICES PROVIDER Court Reporting Videoconferencing Video Depositions and Playback Witness Digital/Phone Statements Transcribed Legal/ Medical Transcription Spacious Conference Rooms www.catuogno.cc 888-228-8646 JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 5 MATA awards President-elect Chris A. Milne On May 6, the Academy presented its and dedication to the people involved in the Courageous Advocacy award to MATA Presicase was the reason for the successful outdent-elect Chris A. Milne as part of MATAвЂ™s come. Attorney General Martha Coakley, annual dinner at the John F. Kennedy Library. whose office was in the courthouse, said, Milne represented over 200 employees of вЂњChris Milne has been a tireless advocate for the Middlesex Edward J. Sullivan Courthouse all of us who worked in the Cambridge courton a pro bono basis in their lawsuit to address house, and I am deeply appreciative of his concerns about the unhealthy building and work on our behalf. When those of us who the management of asbestos worked in the building first learned throughout the courthouse. He of the dangerous conditions, there made a courageous decision to take was a great deal of concern about this multi-year, ground-breaking health issues. ChrisвЂ™s determination case, realizing that the health and during a very stressful time was future of all the employees, prisonpriceless.вЂќ ers and frequent visitors to the Milne is a graduate of Bryant Colcourthouse would be in jeopardy if lege in Rhode Island and received his someone did not take action. law degree from Suffolk University MILNE Having discovered that the interLaw School in 1987. He has served im asbestos safety measures in the building on MATAвЂ™s Board of Governors since 2003 had not been implemented in decades, Milne and has been a MATA Executive Committee demanded that these measures be made a member since 2005. He held the offices of priority until the employees could be moved secretary and treasurer before becoming presout of the building. For almost five years he ident-elect in 2008. An active member of the worked constantly with the courthouse emMassachusetts Bar Association, he was the ployees, MATA, the Massachusetts Bar AssoNorfolk County representative on the Joint ciation and a host of other individuals and orBar Committee on Judicial Appointments, a ganizations to bring about a landmark member of the MBAвЂ™s Civil Litigation Section decision to move people out of what was Council, a regional delegate to the House of clearly a dangerous building. Delegates and a member of the MBA Budget There is no doubt that MilneвЂ™s hard work and Finance Committee. His practice is per- sonal injury law, but he focuses on his work as a trustee in settlements that involve disabled individuals, many of them children. He oversees more than 100 trusts with over $40 million in assets. The MATA 2009 Courageous Advocacy Award is not given every year. It is reserved for someone who has contributed to society, either by action or by dedication to an issue or a belief that benefits people in a monumental and lasting way. Chris A. Milne has met and exceeded the criteria for this award as he continues to work for the good of all. We are honored to present him with this award for his achievements, his belief in justice and his commitment to the law. Major strides, big battles Continued from page 3 Breakstone and Andrew Abraham, who are creatively working with the Flaschner Institute and Judge Peter Lauriat to develop a pilot program in the Commonwealth. MATA is also working with the Massachusetts Medical Society OB/GYN group to change how insurance is written for part time OB/GYNs. We look forward to continuing to build a positive relationship with this group. MATA initiated SeminarWeb this past year and is providing regular online seminars to its members. Under Stan Helinski, The Young LawyersвЂ™ Group spearheaded another Habitat for Humanity Project in New Orleans and a hosted several networking events. The WomenвЂ™s Caucus held their Second Annual Benefit to Warm the Heart for On the Rise. The Membership Committee, chaired by Saba Hashem, reached out to and visited several law schools and created a law school student listserve this year. Frank Riccio continues to hold informative and lively medical negligence section meetings. A listserve was also created for the medical negligence section. MATA continues to grow and improve its programs and services, and its members continue provide a collegial, informative and supportive environment for each other that is uplifting and invaluable. There is an old Irish proverb:вЂњPeople live in one anotherвЂ™s shelter.вЂќThe Academy has and will continue to inspire and provide shelter. We thank each and every member and encourage you in the coming year to continue your efforts to advocate for injured persons and their families. MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 6 JUNE 2009 Excellence in Leadership Award presented to Governor Patrick Continued from page 1 posals. The plan is to help stabilize and position the commonwealth for long-term economic success. Patrick has encouraged residents seeking jobs to utilize the state website for job search assistance and to find training centers. He has sought to create and retain jobs in Massachusetts by a variety of plans to bring business entities to the state and support and expand companies that want to invest in the stateвЂ™s economy. Possibly one of the most important and meaningful priorities that Patrick brought to the State House is the ongoing campaign for civil engagement and the strengthening of communities. This effort brings the government to the people of Massachusetts through statewide town meetings to specifically discuss the concerns in each community, as well as through a newsletter that encourages residents to take part in their government and become more engaged. One of the goals of this program is to raise awareness in each community of the state resources and programs offered to them, but perhaps most importantly, it asks for individual commitments to work together to improve and support their communities and their state. A Statewide Youth Council has been created to try to bring purpose and positive achievements to younger citizens by asking them to volunteer to take part in the changes needed to move Massachusetts forward. Patrick first came to Massachusetts from his hometown of Chicago at the age of 14, when he was awarded a scholarship to Milton Academy throughвЂњA Better Chance,вЂќa Bostonbased organization. After graduating from Milton, he attended Harvard University and received his degree with honors in 1978, becoming the first in his family to graduate from college. He spent a post-graduate year working on a United Nations youth training project in the Darfur region of Sudan before returning to Harvard to attend law school in 1979. After graduating, Patrick served as a clerk to a federal appellate judge before joining the NAACP Legal Defense and Education Fund. In 1986 he joined the Boston law firm of Hill & Barlow and was named partner in 1990. In 1994 President Clinton appointed Patrick to the post of assistant attorney general for civil rights. Patrick returned to private practice in 1997 at the Boston firm of Day, Berry & Howard. He subsequently was hired by Texaco in 1999 to serve as vice-president and general counsel, 2001 he became executive vice president and general counsel. Patrick began his term as governor with a grassroots and very personal message of hope, community and hard work. He has sought to increase accessibility to government, promote civil engagement and improve education, health care and a myriad of other issues. Through his dedication and belief in Massachusetts he has proven to be a strong and focused leader. Shakespeare.You may get the job done, but you are missing out on joy and inspiration вЂ” and are not truly educated.вЂќMoe LevineвЂ™s books are out of print, and are like gold if you can find them at all. For example, as I write this in early May, second hand copies of The Best of Moe: Summations (237 pages) are listed for sale on line with prices ranging from $890 for the 1967 edition to $695 for a 1983 reprint.The Trial Guides book, Moe Levine on Advocacy, releasing soon, promises to be the most complete collection of Moe LevineвЂ™s teachings ever published. Meanwhile, the presently available Moe Levine вЂ“ The Historic Recordings, allows us to experience on CD some of LevineвЂ™s lectures to trial lawyers forty years ago. His sample closing arguments are breathtaking. Trial Guides advises that upcoming publications include more from David Ball and Don Keenan (Reptile 2009), Aaron DeShaw on brain injury cases, more from Eric Oliver, Robert Hall with grief therapist Mila Tecala on grief and loss, and a re-release of Bill BartonвЂ™s Recovering for Psychological Injuries. Significantly, Trial Guides does more than sell books and DVDs.The company works constructively with AAJ, organizes CLE seminars and webinars, and plans to provide an on-line communityвЂњto supplement your participation in AAJ.вЂќThe incipient on-line community already includes two very promising free resources вЂ” Ball on Damages Forum, and Rules of the Road Forum, designed to enable us to share our experiences and ideas relative to the techniques promoted by these books. The website is www.trialguides.com. Check it out. Ke epin g our eye on the S ummit cas e. Those of us seeking to utilize the plain language of OSHA regulations to hold general contractors responsible for construction site safety have for the past couple of years had to deal with an administrative decision by the Occupational Safety and Health Review Commission, limiting citations to dangers involving the general contractorвЂ™s own employees. In March 2009, the U.S. Court of Appeals for the Eighth Circuit, ruled that OSHA regulation 29 C.F.R. Sec. 1910.12(a)вЂњis unambiguous in that it does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.вЂќThe Court rejected the Occupational Safety and Health Review Commission decision as an abuse of discretion. The case does not put to rest all controversy aboutвЂњcontrolling employerвЂќOSHA citations, but it at least takes this unfortunate administrative decision out of play.The citation is Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009). Trial Guides a repository of vital information for plaintiffsвЂ™ bar Continued from page 1 Polarizing the Case, and Becoming a Trial Lawyer, are all published by Trial Guides. вЂњTrial Guides, Friedman says,вЂњis doing what no other publisher has ever doneвЂ”bringing the best advocacy books and writers under one roof. This company has repeatedly demonstrated its commitment to helping plaintiff lawyers win cases. For that, we should all be grateful.вЂќIndeed, the catalogue is filled with books and presentations from accomplished trial lawyers like Paul Luvera (Paul Luvera on Trial Strategy), Don Keenan (Representing the Faces of the Future), Gerry Spence (How to Argue and Win Every Time) and Jim Perdue (Winning With Stories), as well as from nationally known experts such as trial consultant Eric Oliver (Facts CanвЂ™t Speak for Themselves), and forensic consultant Dr. Michael D. Freeman (Error Odds - Exposing the Lack of Accuracy in Malingering Tests). Deciding what to read or see or hear next is becoming a challenge. And they have Moe Levine! Moe Levine! Rick Friedman suggestsвЂњA trial lawyer who has not read Moe Levine is like a poet who has not read Other items of note: In a Recent LE GALTA LKNE T WOR K pod cast entitled вЂњ The Vanishing Civil Jury Trial,вЂќ MATA members Jim Brady from Brady & Monac and Paul F. Kenney from Kenney & Conley welcomed Chief Justice William G.Young, United States District Judge for the District of Massachusetts and prominent defense attorney Holly M. Polglase from Campbell, Campbell Edwards & Conroy, to discuss the vanishing civil jury trial against the backdrop of the constitutional right to a trial by jury.This interesting production, and all of the networkвЂ™s podcasts are available for free at www.legaltalknetwork.com. вЂ�Wyeth v. LevineвЂ™ addresses drug companiesвЂ™ liability This article is reprinted courtesy of the Center for Justice and Democracy. On March 4, 2009, the U.S. Supreme Court ruled in a 6-3 decision, Wyeth v. Levine, that drug companies were not immune from liability for injuring or killing patients with unsafe drugs. Moreover, they found that lawsuits were critical for both supplementing the Food and Drug Administration efforts to ensure drug safety and compensating those who are injured. Among the CourtвЂ™s key findings were: Dr ug s af ety, in clud ing th e ad eq u acy of a d r ug вЂ™s war n ing lab el, is th e вЂњul tim ate r es pons ibi lity вЂќ of the m anu factur e r вЂњat a ll tim es .вЂќ вЂњIt has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain ade- quate as long as the drug is on the market.вЂќ C ongress never meant to w ip e out lawsu its for those who are inju red; in fact, both C ongress and the FDA have encou raged such lawsu its to su p plement FDA r egu lation. There has been aвЂњlongstanding coexistence of state and federal law and FDAвЂ™s traditional recognition of state-law remedies.вЂќ вЂњAs it enlarged the FDAвЂ™s powers toвЂ�protect the public healthвЂ™andвЂ�assure the safety, effectiveness and reliability of drugs, Congress took care to preserve state lawвЂ™вЂќandвЂњstate common-law suits вЂ�continued unabated despite FDA regulation.вЂ™вЂќ вЂњCongress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs вЂ¦ evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers. It may also have recognized that state law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings.вЂќ вЂњState tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.вЂќ State tort suitsвЂњserve a distinct compensatory function that may motivate injured persons to come forward with information.вЂќ C ong r ess di d n ot intend FDA over sig ht to b e the e xclu sive m e ans of ens ur in g d r ug s afety and eff ectiv enes s . вЂњThe FDA has limited resources to monitor the 11,000 drugs on the market and manufacturers have superior access to information about their drugs, especially in the post-marketing phase as new risks emerge.вЂќ вЂњ[T]he FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation.вЂќ Th e policy of the B u sh adm i nistr ation to tr y to elim in ate tor t r ig hts in вЂњpr e am b lesвЂќ of f eder al r eg ulation s is not s up por tab le a nd d oes not вЂњm e r it d efe r ence.вЂќ вЂњ[T]he FDAвЂ™s 2006 preamble does not merit deferenceвЂќbecause the public hadвЂњno notice or opportunity to commentвЂќ; isвЂњat odds with the available evidence of CongressвЂ™ purpose; and it reverses the FDAвЂ™s own longstanding position that state law is a complementary form of drug regulation without providing a reasoned explanation including any discussion of how state law has interfered with the FDAвЂ™s regulation of drug labeling during decades of coexistence.вЂќ вЂњ[T]he FDAвЂ™s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight.вЂќ The Center for Justice and Democracy is a nonprofit, tax-exempt group, founded by consumer advocates to protect the civil justice system. More information about the CJ&D is available on the organizationвЂ™s website, http://centerjd.org/. JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 7 Legislation Committee By Tim Kelleher The economic downturn has had a negative impact on a lot of people and businesses. Across the board, there are many people who are dealing with difficult financial and personal situations. There are different points of view as to why we find ourselves in our present situation and many different suggestions regarding how we can get out of it. In times like these, MATA and its membership do their finest work for consumers, injured victims and their families. Unfortunately, in times of crisis, often legislation is filed that is intended to deal with a financial or other difficult challenge but risks taking away established and important rights of individuals. MATA is one of the few groups that stands up for the individual and takes the necessary steps to prevent the proposed legislation from becoming law. We prepare written testimony, attend hearings, testify and meet with legislators and their staff. We do all that we can to explain the negative impact legislation will have on individuals and try to bring about a change that protects them. This year is going to continue to be difficult from a legislative perspective. MATA expects to meet the challenge. Proposals include legislation that would limit the damages an innocent victim can be awarded by a jury, eliminate certain types of legitimate and valid claims and create additional unnecessary legal requirements for an individual to bring a valid claim. MATA will continue its efforts to voice its opposition to these proposals and to take the necessary steps to prevent them from becoming law. I would like to thank Neil Sugarman for his efforts in dealing with a number of important legislative issues this year. He has committed a great deal of time and effort to prevent certain bills that would have taken away the rights of individuals from becoming law. He has attended meetings, testified at the State House and met with state senators and representatives. MATA is fortunate to have such a great resource and voice speaking on its behalf. MATAвЂ™s Legislation Committee will continue to monitor and address proposed legislation this year. We will be appearing before a number of different committees. We will continue to respond to bills that impact the civil justice system on the health and safety of individuals and their families. It is no longer the case that bills that impact the civil justice system or the health and safety of families will be heard before the Joint Committee on the Judiciary. They will be heard in many different committees as they were over the last year. Tracking these bills has been a difficult task, but MATA will continue to monitor them and to respond to them. In addition to spending a great deal of time opposing bills, MATA members will continue to write testimony and testify in support of a number of bills which would improve our civil justice system.The following list summarizes some of the proposed bills which impact issues pertinent to MATA: General legislation An A ct Gr anting Discr etion to the Superior C ourt to A llocate Certain Settlem ent Proceeds Allocates proceeds from a personal injury judgment or settlement between the plaintiff and the insurance company that provided benefits for treatment of said injury; authorizes the court to reduce amounts of insurersвЂ™liens if said settlement or judgment amount does not sufficiently compensate the plaintiff for damages incurred A n A ct to Pr ohib it th e U se of C er ta in Li abi lity Waive r s as A gain st Pu bl ic Policy Defines any agreement, waiver, disclaimer, exclusion or limitation of liability in an employment contract or application releasing any third party from liability for injuries or death resulting during the scope of employment as void against public policy; prohibits the mandatory signing of said documents by employees or employment applicants A n A ct R elative to the Ex amination of Ju r ors Establishes a pilot program governing the voir dire procedures for selection of jurors in civil and criminal trials; authorizes the direct oral examination of the potential jury members by a party to the trial or the attorney therefore; authorizes the court to impose reasonable limitations on questions presented A n A ct Pr ov id ing for th e E q uitabl e Ap por tionm e nt of C er tai n Liens Requires the hospital, health maintenance organization or medical or dental services cor- poration and the plaintiff in a personal injury action to divide costs and expenses incurred in enforcing the liability of the tortfeasor, including attorneysвЂ™ fees and court costs A n A ct R elativ e to Li q uor Legal Liab ility I n su r a nc e Prohibits the issuance or renewal of a license for the sale of alcohol to be drunk on the premises unless the applicant provides proof of coverage under a liquor legal liability policy of at least $250,000 for a single incident and $500,000 for multiple incidents A n A ct to C lar if y th e C har itab le Pur p os es of C er tain Or g anization s Prohibits use of the fact that a corporation, trust or association is a charity as a defense to any tort action; limits liability in said cases to $20,000 if said tort was committed in the course of charitable activity and said corporation, trust or association earns more than 50 percent of its income from gifts or donations; and limits liability for organizations established primarily for religious purposes to $20,000 Auto legislation A n A ct R elative to Personal Inj ur y Litigation Regulates adjudication of settlements for lawsuits against insurers relative to failure to pay personal injury benefits; authorizes courts to assess costs, reasonable attorneysвЂ™ fees, and interest against insurers for costs accrued up to the time of payment by the insurers A n A ct R elativ e to R eq uir in g I nsu r anc e for Ta xicab s and C om m er cial Ve hicles Requires all commercial vehicles and taxi cabs charging a fee to passengers to maintain liability insurance policies of at least $100,000 for death or injury of any one person or of at least $300,000 for accidents resulting in death or injury to more than one person A n A ct to Protect Consumers in the Issu ance of Au tomobile Insu rance Policies and Bond s Prohibits the changing of any coverage, condition or definition of any motor vehicle liability policy or bond without the approval of the commissioner of insurance after notice of such proposed changes to the public and the Financial Services Committee prior to a public hearing A n A ct R elativ e to C er tain M ed ical E x am ina tions Amends provisions relative to automobile insurance liability insurance; requires an injured person to submit to physical examination by a licensed practitioner, selected by the insurer, as often as required but no more than one each six months; requires said examinations to be conducted in a location accessible from the injured personвЂ™s residence; and defines failure to comply as a violation of Chapter 176D A n A ct to R epe al No Fau lt M otor Vehic le I n su r a nc e Repeals existing provisions relative to the inclusion of personal injury protection in motor vehicle insurance policies and maintenance of assigned claim plans by motor vehicle insurance companies; amends various provisions relating to coverage under assigned risk plans including, but not limited to, increasing the limits of medical payment coverage and providing wage protection coverage thereunder; articulates mandatory coverage by companies issuing motor vehicle insurance including, but not limited to, medical payment provisions without regard to negligence or fault and wage protection coverage; repeals tort threshold requirement WorkersвЂ™ Compensation legislation A n A ct R elativ e to Wor ke r вЂ™s C om pe nsa tion Amends provisions relative to the payment of workersвЂ™compensation benefits by insurers; requires insurers to pay workersвЂ™compensation benefit allowances to workers with bodily disfigurement in the amount up to twenty-nine times the average weekly wage in the commonwealth; increases benefit allowances for burial expenses from $4,000 to $8,000 dollars; repeals provisions limiting compensation for workers who are partially incapacitated; authorizes extension of said benefits for the articulated cases including, but not limited to, workers who return to work pursuant to individual written rehabilitation plans, workers who are found unsuitable for vocational rehabilitation and workers who return to employment for wages less than their pre-injury wages A n A ct R elativ e to Inj ur e d Wor ker s Authorizes administrative judges to determine the rates for health care services in workContinued on page 13 NOW HEAR THIS Fast, accurate, unimpeachable forensic audio services We specialize in audio enhancement and courtroom presentation If audio is an element of your case, we will create the most logical and dramatic presentation of your material Our clients include the Suffolk County District Attorney, Smithsonian Institution, Courtroom TV (JFK Assassination Tapes), Hendrix Archives, and Radcliffe College among others Great audio can make or break a case! 76 Green Street, Jamaica Plain, MA 02130 Minutes from the Green Street MBTA station 617-522-1412 www.soundmirror.com 8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS JUNE 2009 MATA Annual Dinner BENEFACTORS Baker & Abraham, PC Cooley Manion Jones, LLP Forge Consulting Leavis & Rest, PC Chris A. Milne Law Offices Kreindler & Kreindler, LLP Sugarman PATRONS Crowe & Mulvey, LLP Advocates Catuogno Court Reporting Halstrom Law Offices IWP Kenney & Conley, PC Kotin, Crabtree & Strong, LLP Lubin & Meyer, PC Thornton & Naumes, LLP FRIENDS Breakstone, White & Gluck Citizens Bank Cohen & Oalican, LLP Karon & Dalimonte Landy Insurance Margolis & Bloom Mark S. Mandell, Esq. Schwartz & Boisclair, LTD Meehan, Boyle Black & Bogdanow, PC New York Life Insurance Rezendes & Trezise Law Offices of Frank Riccio Shalhoub & Orlacchio Shapiro & Associates Sheff Law Offices JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9 MATA Annual Dinner PHOTOS BY DAVID SILVERMAN WorkersвЂ™ Comp Bench Bar 2009 SPONSORS Injured WorkersвЂ™ Pharmacy Law Offices of James S. Aven Curtin, Murphy & OвЂ™Reilly Eden, Rafferty, Tetreau & Erlich Ford, Mulholland & Moran Keches Law Group Moriarty & Associates, PC Morrison Mahoney LLP Alan S. Pierce & Associates Quinn & Morris Salisbury & Neelon Law Offices of Buzz Schneider Tentindo, Kendall, Canniff &Keefe Torrisi & Torrisi, PC MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS JUNE 2009 Public respect and trust: how to restore and deserve it 10 Continued from page 1 convinced a third of Americans that trial lawyers are a serious public menace. As with all big-lie campaigns, the tort-вЂњreformвЂќ campaign has been based on grains of truth in order to make it credible. Some greedy trial lawyers do misuse their power. Some verdicts are or seem outlandish and harmful. Many trial lawyers and their organizations support liberal politicians and judges who threaten the core values of many people. Medical liability insurance, products, services, and personal insurance have indeed gotten more expensive. And a few years ago there was indeed a shortage of flu vaccine.The propagators of tort-вЂњreformвЂќbrilliantly and without opposition spun and distorted such truths into a fullblown, nightmarish mix that turned trial lawyers and judges into terrorists вЂ“ at least in the minds of a third of the public. Tort-вЂњreformвЂќbeliefs are now so firmly embedded вЂ” and so firmly supported by a third of every community вЂ” that they cannot be changed by anything our side says, no matter how we say it or how often. ItвЂ™s too late for words. When a trial lawyer or a trial lawyerвЂ™s organization uses only words, things get worse. When a politician you fear and hate talks about justice, decency, and fairness, you hate that politician even more for what you perceive as his or her hypocrisy. ThatвЂ™s what the poisoned third does when they hear us talk about justice or any of our other values. In their eyes, we are a poisoned source вЂ” and no one trusts the words of a poisoned source. Not ever. For example, try arguing with an extreme believer on the other side of your political fence. As you argue, he will erect a higher fence. If you think you or your organization has ever changed a tort-вЂњreformedвЂќjurorвЂ™s mind with just words, the only fool in that interchange was likely you. Worst is when trial lawyers and their organizations rely on shallow platitudes. For example: вЂњWeвЂ™re here for the little guy.вЂќTort-вЂњreformedвЂќcitizen response?вЂњYeah, you love it when a little guy gets hurt because you make lots of money.вЂќ Or, вЂњWeвЂ™re here to protect families.вЂќTort-вЂњreformedвЂќ translation:вЂњYeah. Your families. Not ours.YouвЂ™re taking away our health care, our jobs, and our financial well-being.вЂќ Or, вЂњWeвЂ™re here for justice.вЂќTort-вЂњreformedвЂќ translation:вЂњYou love justice because you make a fortune from it.вЂќ You can even lose your case simply by starting your opening with,вЂњLadies and gentlemen, the truck driverвЂ™s carelessness hurt my client and we are here for justice.вЂќTort-вЂњreformedвЂќ translation?вЂњHereвЂ™s one of those greedy lawyers weвЂ™ve been warned about.вЂќ When it comes to public opinion, not even facts help us. In every state, a third of the public believes that trial lawyers are driving down the number of physicians in the state.The fact is quite the opposite: the increase in the number of doctors in every state but one is unprecedented. But when we say that, no one believes us, because we are a poisoned source.вЂњWhen a trial lawyer uses a fact or statistic, it is a lie.вЂќ In our younger years, most of us believed this:вЂњIf I just had the chance to sit down and explain to the other side what is wrong with their point of view, they would see the truth in what I say.вЂќRemember when you thought that? Long, long before your first trial, I bet. Not even Gandhi, Jesus, or Martin Luther King Jr., вЂ” extraordinary deployers of words вЂ” could rely on words alone.They needed acts and even miracles to persuade. Fortunately, we donвЂ™t need miracles. We need just some deeds. Good deeds. Deeds first. Then, if still necessary, words, messages, communications. Use the reverse order at your peril.That is the single most fundamental and universally accepted principle of persuasion. The solution So what do you do? What should your organizations do? What can open the minds of the poisoned third of the public enough to grant admission to our good words, arguments, and facts? How do we regain the ground lost to the decades-long campaign about our supposed evil deeds? Simple. We ju st n eed to do thin gs that help other s in way s tha t d o n ot sim u ltan eou sly he lp our s elves . We n eed to r egu lar ly, pu b lically, a nd self less ly com m it altr uis m . In playwriting and screen writing, this foolproof method is calledвЂњSave the cat.вЂќ(See Blake Snyder, Save the Cat.) The principle: You easily persuade an audience that a character is good by showing the character doing something selfless or even disadvantageous to himself. It works in real life even better than in the movies. (ItвЂ™s the opposite of kicking the puppy.) How do we know itвЂ™s foolproof? From Shakespeare. From marketing experts. From psychologists. From history. And from those individual attorneys who have already been doing it. Selfless good works is even the prime ingredient of classical oratory, where the focus is always on deeds, never on words вЂ“ no matter how oratorically soaring the words may be. Re-read Mark AntonyвЂ™sвЂњorationвЂќвЂ“ how he turned the angry Roman crowd that had been cheering CaesarвЂ™s assassination. Mark AntonyвЂ™s brilliance lay not in his words.The crowd did not turn his way until he pointed out what Julius Caesar had done. When WalMartвЂ™s reputation was sinking to the point where it affected sales, rather than mounting more sales campaigns, WalMart started doing good things, such as improving employee health benefits. And who was first to show up after Hurricane Katrina? WalMart! With three huge 18-wheelers loaded with fresh water. And the same heartless corporation that forced its employees to go to government programs rather than provide health care benefits has now mended it bad reputation by giving out four- dollar prescriptions. When mid-east terrorists found that their violence was alienating their own supporters, the terrorists started programs of medical help, schools, and other social services for the populace.The terrorists knew better than to rely on words. All good persuasion uses effective good framing, well-chosen words, and active themes. But without a focus on deeds, all the framing and words and themes вЂ” and even facts вЂ” in the world are useless. Just as you canвЂ™t win a case by stamping your foot and saying,вЂњMy client is right so give us money!вЂќNeither can you change the minds of tort-вЂњreformedвЂќjurors by stamping your foot and sayingвЂњTrial lawyers are good, so trust us!вЂќ I think I hold the worldвЂ™s record for the number of tort-вЂњreformedвЂќjurors interviewed in depth. I know every reason for which they fear and loathe you. I know their ugly reactions when they hear our words about how good we are, and about how mistaken their conceptions about us are.They carry their reactions right into trial. Every time. This kind of information never surfaces in the kind of polling or focus groups our organizations do or sponsor. Such studies are for different вЂ“ and necessary вЂ“ purposes. But they illuminate nothing about how citizens influenced by tortвЂњreformвЂќthink and decide when they become jurors. So we had to do our own jury research. As a result, we know what can change the hearts and minds of the public about trial lawyers. We have tried it with the worst of those jurors, and it works. HereвЂ™s what we have found out: The Big Three Trial lawyers need to do three things. First, and right now, trial lawyers need to learn how to conduct trials so as to persuade the poisoned jurors to side with the plaintiff.This can seem impossible but the most recent research has shown us how to do it. If you have a trial coming up, you cannot delay learning this new material. Second , trial lawyers need more than ever to financially support the legislative efforts of groups such as AAJ and NCATL to fight anti-litigation legislation. Trial lawyers who do not вЂ” yet reap the benefits of those fights вЂ” are leeches. Third , trial lawyers and their organizations must use effective methods of changing the minds of the poisoned third of the jury pool.This does not means words. It means good works. No words or messages вЂ“ unless accompanied by an equal or greater dose of good words. We have no need to match the increasing tens of millions the insurance companies, chambers of commerce, and national and international corporations continue spending to wipe out trial lawyers. Unlike any campaign of words, our good works will outweigh every last cent the other side can spend. Ther e is no effective weapon against the power of good wor ks . Does it work? Come back with me to the early 1990s. An Atlanta attorney вЂ“ Don Keenan вЂ“is doing some playground injury cases: kids who got mangled or killed because half-ton dead branches will eventually fall, or because jagged pieces of metal fence will poke out young eyes, or because of any other of a number of other common and commonly ignored playground dangers. Now, Keenan wins the cases he tries, so heвЂ™s doing right by these kids. But in the dark of the night, Keenan finds himself thinking,вЂњDo I really want to lie on my death bed someday thinking that all IвЂ™ve been in my life is the guy who comes around afterwards to clean up? Just the garbage man?вЂќKeenan decided it was not enough. So, he thought, Why not keep kids from getting hurt in the first place? Now thereвЂ™s an act against a trial lawyerвЂ™s self-interest! Prevent the very kind of harm that provides his cases! So Keenan printed up a playground safety check-list. He distributed copies all over the place вЂ“ so parents could take the list to their kidвЂ™s playground and check off every safety-required item. No dead overhanging branches. Check! No missing rubber safety tips. No jagged fences. No broken pavement. Etc. Any item on the list that a parent could not check off was to be reported to the principal, then the school superintendent, then вЂ” if still necessary вЂ” the news media. In this easy way, Keenan protected innumerable kids. And he showed that he was a caring person. He never stood around proclaiming such counter-productive words as,вЂњI care! I care! Watch me feel how I care!вЂќInstead, he acted вЂ” and to this day continues to act вЂ” to help more and more вЂ” in ways that do not simultaneously enrich himself. Because, as everyone knows, saving the cat does not help you when youвЂ™re paid to save the cat. Aside from protecting innumerable kids, KeenanвЂ™s good works also gave him a foot in the door of the tort-вЂњreformedвЂќjurors. Over the years, Keenan did more. His Keenan KidsвЂ™ Foundation is a major public force in protecting children in every way they need protecting. And his recent book вЂ“ 365 Ways To Keep Kids Safe вЂ“ carries his work even farther. Did KeenanвЂ™s good deeds help? Well, when he sets foot in trial, there is no tort-вЂњreform.вЂќ Jurors knowвЂ“ or quickly find out when they check him out on line, as some on every jury do regardless of admonitions from the bench вЂ” that Keenan is the guy who protects kids. So when they see him here protecting the child in this particular case, the jurors know heвЂ™s not just whistling Dixie (if, gentle reader, you will permit me such a metaphor). Not every trial lawyer can start a public service foundation as Keenan did вЂ” though you can band together with other lawyers and do it easily. Not everyone can write child safety books that Oprah orders her audience to read, though you can fill your web site with useful safety tips. But every trial attorney can find use good and selfless works to do. And even without OprahвЂ™s help, trial lawyers can easily вЂ” and inexpensively вЂ” let their communities know about their good works. In fact, letting the community know means that others in the community will likely to step forward to help. The specifics Last year I was explaining theвЂњgood worksвЂќ principle a Los Angeles CLE seminar.вЂњGo do good works!вЂќI pleaded, as I am pleading now. A lawyer raised his hand and asked,вЂњWhat good is there we can do?вЂќHe was not kidding. The guy lives in the middle of L.A. and could not think of any good that needed doing.The poor guy. Well, in case heвЂ™s reading this: Continued on page 11 JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS Continued from page 10 To paraphrase the great 17th-century English poet John Dryden, вЂњSimply go do the good thing nearest you. (вЂњDo the duty which lieth nearest to thee! Thy second duty will already have become clearer.вЂќ) Keenan was doing playground cases. He does kidвЂ™s cases. So he did the nearest thing by helping protect playground kids before they got hurt. And now he protects all kinds of kids from all kinds of danger вЂ“ before they get hurt. ItвЂ™s an easy club to join: Do whatвЂ™s nearest you:. WhatвЂ™s in your world that you can help make safer, or better, or easier for other people вЂ” and that does not simultaneously profit you? HereвЂ™s a sampling of what trial lawyers have already done, and what their organizations have done: 2006. Oklahoma. Dangerous heat wave. A trial lawyer is out buying a window air conditioner. Decides to buy two. Goes home, calls a social agency to get the name of someone in danger of dying from the heat.That evening the news on TV features the lawyer installing the air conditioner. Cut to an elderly man inside saying,вЂњI have heard of this kind of thing happening to other people. I never thought it would happen to me.вЂќHe goes on to explain how the heat nearly killed him the night before, but that now ... and he begins to cry. One of the more powerful TV moments anyone has ever seen. That was Saturday. Monday: Members of the trial lawyers acade- my in Oklahoma chip in enough to buy dozens of air conditioners.They install them where needed all over the state. Result: lives saved. And great news headlines extolling trial lawyers. Now in Oklahoma, the termвЂњTrial LawyerвЂќhas some new respect вЂ” because they called the air-conditioner programвЂњTrial Lawyers Are Cool.вЂќ 2006: A Connecticut Trial Lawyers Association press release announces that a dozen trial lawyers standing by to provide free legal assistance to veterans having difficulty with government agencies.This becomes a leading news story in New York and throughout New England for days. And lots of veterans are being helped. Years ago: A Midwestern town runs out of money for Fourth of July fireworks. A trial lawyer steps in.To this day he pays the few thousand a year for the fireworks. He dresses up as Uncle Sam and gives the Fourth of July speech. Everyone loves it. HeвЂ™s become a town hero and institution. Do you think tort-вЂњreformвЂќ hurts him when he goes to trial? Nope. Websites Smart trial lawyers turn their web sites to goodworks use. Rather than the usual transparentgreed sites such as theвЂњWe-are-such-good-lawyersand-we-will-win-your-caseвЂќ site, or the вЂњLook-at-mypicture-donвЂ™t-I-look-professional!вЂќ site, or theвЂњHereвЂ™s me in my library of books I havenвЂ™t opened in a decadeвЂќsite, or the вЂњHereвЂ™s my great victories where I got juries to give wads of money that other lawyers wouldnвЂ™t have gotten,вЂќ site, lawyers are now trans- 11 forming their web sites into help centers. If you do the same, then when jurors look you up вЂ” as they will вЂ” theyвЂ™ll see you are about caring and good works, not about marketing and greed. So fill your web site with lists of on-line and local injury support groups, books to help victims cope (Such as Fighting Back, the Rocky Bleier Story вЂ” which has helped countless badly injured folks deal with their agony), and other help resources. Facts they need to know about. Your legal wares should be a page they reach by a secondary link. DonвЂ™t worry; if they need youвЂ™ll theyвЂ™ll find it. And jurors looking you up will see your attention to good works. A caring trial lawyer in Wisconsin, Gordon S. Johnson, Jr., has a good-works web site called waiting.com. It is for people who have loved ones in comas.The site comes up on the first or second page of a Google search. It is not the usual greedy, pathetic, and harmful attempt to cram legal services down some poor familyвЂ™s throat. Instead, it is an attempt to ease them, inform them, comfort them, and introduce them to a community of others in their same situation and to experts about comas. It includes JohnsonвЂ™s legal services, but almost as an afterthought. And yes, he does get cases from it. But he serves the greater good by actually helping people, most of whom are obviously not potential clients. Another good-works web site: icanmakeadifference.com. ItвЂ™s run by the Gary Martin Hayes law firm in Atlanta. And in association with Mothers Against Drunk Driving, Gary Martin Hayes runs public service ads against drunk driving. Hayes is even on the board of MADD.This shows (not tells) that heвЂ™s about safety, not greed.That pays off in every trial. And it helps innumerable people. A potpourri of good works Now, you donвЂ™t need the list that follows. On your own, you can figure out plenty of good works you can do. But to get your thinking juices flowing: A number of firms give out bicycle safety helmets. A rural western firm supplies a staff person every afternoon to serve as school crossing guide. Your firm can provide free legal services for local social-help agencies or start-up schools. Or serve on the schoolвЂ™s or agencyвЂ™s board and publicly seek support for it. Run anвЂњemergency assistanceвЂќhotline on your web site вЂ“ where people in need can post their needs and people interested in helping can review the site often to see how they can help. Look into what you can do in your community to help senior citizens, or the homeless, or areas that need neighborhood security programs, or food banks, or ... ad infinitum. Run a December holidays booth or table at a local mall to collect presents or cash for local underprivileged kids. Protect the public by providing taxi tokens to intoxicated patrons for a free cab home. Continued on page 12 Massachusetts Academy of Trial Attorneys 17th Annual Golf Classic Ipswich Country Club Ipswich, MA dЕљДћ t О� D d tЕЅЕµДћЕ¶Н›Жђ Д‚ЖµДђЖµЖђ Ж‰ЖЊДћЖђДћЕ¶ЖљН— Trials Facing Women Litigators & Tips for Success Monday, October 5, 2009 1:00 PM Registration & Lunch 1:30 PM Shotgun Start 18 Holes ЖЃ Best Ball Scramble Entry Fee includes: Greens Fees, Cart, Lunch, 19th Hole Reception, Awards Dinner, and a Tournament Gift Contests: Hole-in-One, Top Teams, Longest Drive, Closest to the Pin Awards Dinner begins with the 19th Hole Reception and ends with the Awards Presentation to the Contest Winners and a Raffle! Raffle prizes include: Golf Equipment, Sporting Event Tickets, Restaurant Gift Certificates and much more! 17TH ANNUAL MATA GOLF CLASSIC Гі MONDAY , OCTOBER 5, 2009 Гі IPSWICH COUNTRY CLUB WД‚Е¶ДћЕЇЕќЖђЖљЖђН— ГЇ<Д‚ЖљЕљЗ‡ :ЕЅ ЕЅЕЅЕ¬Н• tД‚ЕђЕ¶ДћЖЊ ЕЅЕЅЕ¬ &ЖЊДћЕќДЏДћЖЊЕђДћЖЊ О� tД‚ЖђЕљЕќДћЕ¶Е¬ЕЅ >> вЂўZДћЕ¶ДћДћ ЖµЖ‰ЖµЕќЖђН• DД‚ЖђЖђД‚ДђЕљЖµЖђДћЖљЖљЖђ ЖљЖљЕЅЖЊЕ¶ДћЗ‡ 'ДћЕ¶ДћЖЊД‚ЕЇО–Жђ KДЁДЁЕќДђДћ вЂў,ЕЅЕ¶Н� EД‚Е¶ДђЗ‡ 'ДћЖЊЖљЕ¶ДћЖЊН• :ЖµДљЕђДћН• hН� ^Н� ЕќЖђЖљЖЊЕќДђЖљ ЕЅЖµЖЊЖљН• ЕќЖђЖљЖЊЕќДђЖљ ЕЅДЁ DД‚ЖђЖђД‚ДђЕљЖµЖђДћЖљЖљЖђ вЂў:ЕЅД‚Е¶ Н� >ЖµЕ¬ДћЗ‡Н• ZЕЅЖ‰ДћЖђ О� 'ЖЊД‚З‡ >>W вЂў,ЕЅЕ¶Н� ЕќЕЇДћДћЕ¶ DН� ^ЕљД‚ДћЗЂДћЕЇ НѕЖЊДћЖљН�НїН• ЕќЖђЖ‰ЖµЖљДћ ZДћЖђЕЅЕЇЖµЖљЕќЕЅЕ¶ ЕЇЖљДћЖЊЕ¶Д‚ЖљЕќЗЂДћЖђ Four players constitute a team. You do not need to be a full team to register. Foursomes will be completed for you! Name:_________________________ Name:_________________________ Address:_______________________ Address:_______________________ Telephone:_____________________ Telephone:_____________________ Fax:___________________________ Fax:___________________________ E-mail:________________________ E-mail:________________________ Name:_________________________ Name:_________________________ Address:_______________________ Address:_______________________ Telephone:_____________________ Telephone:_____________________ Fax:___________________________ E-mail:________________________ Fax:___________________________ E-mail:_________________________ Registration Deadline September 21, 2009 Registration Fee: ____$225 per player ____$800 for a foursome ____$50 for just Awards Dinner ____$250 for a Tee/Green Sponsorship (includes signage on the tee or green & recognition in the MATA Journal) AMOUNT ENCLOSED $____________ Z^sW ЖљЕЅ Ж‰ЖЊЕЅЕђЖЊД‚ЕµЖђО›ЗЃЕЅЕµДћЕ¶ЖђДЏД‚ЖЊН�ЕЅЖЊЕђ ЕЅЖЊ ПІППіН�ПµПіПЇН�ПІПІПІПІ Return to: MATA 8 New England Executive Park Suite 160 Burlington, MA 01803 _____AMEX _____M/C _____VISA _____CHECK ENCLOSED Phone: (781) 425-5040 Credit Card #:_______________________________Sec Code #______Exp. Date:_______________ Facsimile:(781) 425-5044 E-mail: j e n n i f e r @massacademy.com Signature:_________________________________________________________________________ June 16, 2009 at 4 p.m. Moakley Federal Courthouse Reception immediately to follow At The Daily Catch ^Ж‰ЕЅЕ¶ЖђЕЅЖЊДћДљ З‡Н— О� Public respect and trust: how to restore and deserve it MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 12 Continued from page 11 Team with other lawyers to do safety checks of public and business facilities. Report the results on your web site or in a newspaper column. Become an actively involved supporter and fund-raiser for a worthwhile local charity. (Avoid anything controversial.) Teach English to immigrants вЂ“ free. Advertise to attract attendees. (Learn how to teach by Googling TEFL (вЂњTeaching English as a Foreign LanguageвЂќ).You can become an expert in just a few hours. Teach adult literacy classes. Tutor kids or any other group that needs tutoring. (Sunday school does not count.) Provide continuing help to kids with illnesses, disabilities, or permanent injuries. (For an inspiring example, see the Epilogue to this article.) Team up with a local hospital. Provide help for social workers who deal with these problems. Underwrite in-hospital entertainment for the kids (or do it yourself, if you are entertaining enough to entertain kids). Sponsor in-hospital pet-visitation programs or rehab horse programs. Help raise money for such activities. Sponsor or coach a local Special Olympics team. Provide free tickets to local cultural and sports activities for families that canвЂ™t afford them. Become a visible advocate for social agencies вЂ“ MADD,YMCA, etc. Post on your web site the fact that hundreds of people needlessly die every day in American hospitals вЂ“ due to safety rule violations. Provide a list of ways people can protect themselves and their loved ones while in the hospital. Or choose any area of public danger. Explain the danger, and give advice in staying safe. For example, you can post safety tips on cars вЂ” new and used вЂ” for such things as child safety in the back seat. (Some cars are more dangerous than others for kids.). Post a list of the dangerous streets in your community for bicycles. Be openly available for free legal help when disaster вЂ” flood, hurricane, etc. вЂ” strikes. Organize 25 lawyers across the state who will show up as first responders at the disaster site with the Red Cross or other state disaster relief officials. One stateвЂ™s trial lawyerвЂ™s academy has already launched this program.The purpose is to help folks with their insurance companies and other legal matters that emerge from the disaster. Free, of course. Just showing people you are there to help relieves one of their greatest worries. Get involved with the Bob Woodruff Family Foundation to provide needed support to the overwhelming number of returning brain-injured veterans. Team up with two or three other trial attorneys to write a regular legal-advice column in a local minority-reader newspaper. (Great for marketing and youвЂ™ll provide an essential service.) Team up with two or three other attorneys to do a weekly drive-time radio show for a local station. Cover topics such as interesting local trials and verdicts, guidance on how to stay safe in various situations (e.g. in hospital), legislative matters that can affect individuals, legal advice people need to know, etc. Adopt a highway. Keep it spotless. Help your local childrenвЂ™s guardian ad litem program, or Friends of the G.A.L.They need and deserve help, your help will change young lives, and you will go to heaven. If you advertise, 25 percent of your ads should be helpful, not just marketing pleas. For example, вЂњWe do not want to see you as a defendant in court, so please: DonвЂ™t text message while driving.вЂќ Or,вЂњIf you exceed the speed limit in a school zone we will come get you in trial. So slow down.вЂќ If you buy the back page of the phone book, a third of your ad should be a list of emergency numbers or some other useful service... For a small ad inside the phone book, include a line or two that supports a local cause or delivers a selfless message:вЂњSupport Mothers Against Drunk Driving.вЂќOr,вЂњMake trial lawyers obsolete: Do everything safely.вЂќOr,вЂњSafety First. We already have enough business.вЂќ Rejecting cases ThereвЂ™s a right way and a wrong way to reject cases.The wrong way is how itвЂ™s almost always done. Debra Miller, one of my partners at Miller Malekpour & Ball, has a better way. It requires more than just sayingвЂњno.вЂќIt requires sending folks away with hope and some real help. For example, when rejecting someone, provide contact information and descriptive information about no-cost and low-cost support and assistance groups for folks with his or her kinds of injuries. Include area and on-line social and community services, and national resources (e.g., the Anxiety Disorder Association of America or the American Geriatrics Society Foundation for Health in Aging, etc.). Ask your clients and past clients for other ideas: What has helped them? Relay those ideas to folks you cannot take as clients. Ask your experts вЂ” doctors, psychologists and grief counselors вЂ” for ideas. Collect pamphlets, reading recommendations, and other resources. Describe available videos at the local library. Have your staff person compile all this. Have your most empathetic person unhurriedly review it all with the person you have to reject as a client. Every would-be client comes to you for help. So even when you canвЂ™t take the case, you need to help.You have no moral right to waste their time and give nothing in return.You need to stop making people who are in fear and pain audition for you вЂ“ unless you are prepared to give them something in return more than a chance youвЂ™ll accept them. Stop the ghastly practice of turning people out without helping them вЂ“ as if their fear, pain, anger, and loss are beneath your notice except when they can profit you. Obviously that is not what you intend when you turn them away. But that is exactly how the rejected person and everyone they know perceive it. Result? For each rejectee, you create a small and vocal cadre in your own community who now вЂњknowвЂќyou are made of nothing but greed. Think about how many such cadres have you created so far. This means that most trial attorneys вЂ“вЂ“ each one on his or her own вЂ“ have turned hundreds and even thousands of folks who were not ini- tially tort-вЂњreformedвЂќinto some of the most virulent tort-вЂњreformвЂќjurors who will ever be called for jury duty. Maybe even your jury. By the time they get there, youвЂ™ll have forgotten them. But they will never forget you. So when you reject in the wrong way, you help the insurance companies, the chambers of commerce, and the corporations in the most effective possible way. Because as powerful as your good works can be, bad works are even more powerful. And turning folks away in the wrong way is a profound and public bad work. Please, reject in the right way. Once most firms do that, weвЂ™ll grow an army of grateful (and surprised) folks in every community вЂ“ folks who, in return, will help our cause. More importantly, youвЂ™ll have done the right thing in the right away. Organizations Urge and help NCATL and AAJ to do good works. Not as minor activities вЂ“ but as one of their major activities. The organizations will be likely to do so вЂ“ if you will help. For one of many possibilities: Debra Miller has created an ambitious but practical plan to help medical malpractice victims. NCATL or some ad-hoc group of individual med mal attorneys would start the North Carolina Patient Safety Fund. It would establish a trust to support meritorious med mal cases that are financially difficult or impossible to pursue without assistance . The Fund would also generate public awareness of and support for real legal and medical reform, and provide strategic advice on cases from volunteer lawyers and trial consultants. (Our hands are raised.) NCPSF would help enforce medical safety rules in cases that might not otherwise be affordably prosecutable. Currently there is no such mechanism. So most med mal victims have no recourse, and as a result every future patient is needlessly endangered. 600 people a day die of medical negligence in American hospitals. Countless more are hurt catastrophically in and out of hospitals. Jurors donвЂ™t know this. Nor do they know the resulting public disability and care costs, lost income, or lost household production values.That is estimated as high as $29 billion annually.Yet few cases get an attorney because of the expenses of med mal litigation. NCPSF will help offset this, and make it public knowledge. Ambitious project? Sure. Expensive?Yes вЂ“ but easy enough to fund. Obviously you canвЂ™t do it your own. But there is strength in numbers. If you are interested in seeing such a project, find others who are (Miller Malekpour and Ball, our consulting firm, for example, is readily available to help develop the project. We even have someone ready to research and write the foundation grant proposals. But you have to join us on the bandwagon.). It will be a very visible example of how the work of attorneys actually helps. Show the world An outstanding attorney in one of AmericaвЂ™s great law firms heard me teach all of the above. JUNE 2009 вЂњNo!вЂќshe said.вЂњMy firm has done good works for years вЂ” and we still canвЂ™t win a case!вЂќShe gave me an annual report of all their good works. Problem was, the public knew nothing about them. Among JesusвЂ™s first recorded words are these:вЂњNeither do men light a candle and put it under a bushel, but on a candlestick; and it giveth light unto all that are in the house.вЂќYour good works are your candle, and we have a huge house to light. Today, that firm lists its good works on its website. It should be the siteвЂ™s main page, with everything else on sub-pages. But itвЂ™s a start. Online Speaking of websites: Every political donation you make is easily found on line. Jurors often research this kind of information. No matter what candidate you donate to, it will offend some jurors, leaving them less willing to trust you or want to help you. So make your political donations in your kidвЂ™s name, or some other name. Your political views are none of a jurorвЂ™s business. HereвЂ™s what is their business:Your visible, selfless, good works.They are the only tool that can regain the lost ground of almost 40 years of effective, powerful, well-financed, unanswered tort-вЂњreformвЂќattacks. We can regain the field, but weвЂ™ll have to deserve it. So as Nike says, Just do it. E p ilog ue Last year a lawyer cornered me at a conference.вЂњBall!вЂќHe yelled.вЂњYou ruined my life!вЂќI felt I needed no more of this conversation and started away. But he grabbed me and continued. He said,вЂњDammit, Ball, you told us to do good works. Near-at-hand works.вЂќ I looked around for accessible escape routes. He continued:вЂњI do cases for kids who are serious burn victims. I know that the hardest thing вЂ” beyond even the pain вЂ” is the disfigurement. ItвЂ™s awful for a kid to grow up with. So I started a summer camp for these kids.They get to spend close time with others in the same boat.They gain confidence.They learn how others handle it.The damn idea grew like kudzu. Now I got five burn camps.Takes half my time! I donвЂ™t earn a cent from it! What the hell?!?вЂќ Was he gonna punch me out? Then he вЂ” New Jersey attorney Sam Davis вЂ” says,вЂњAnd I have never been happier in my life.вЂќ (See http://burnadvocatesnetwork.org/. New JerseyвЂ™s Sam Davis is the attorney. Send him money to help support the burn camps.) That gives us the gold standard. If enough trial lawyers get to that level, tort-вЂњreformвЂќin juries and in the legislature will devolve to a barely believable historical oddity. Result: Fair Settlements. Fair verdicts. The alternative: If we rely on just the blather of words to try to persuade, in the near future there wonвЂ™t be trial lawyers. Because once the poisoned third grows to half (eight or nine years away at the current rate) your work will be outlawed. So get busy. Either that or get a book on how to do some other field of law. I assure you, I will not have written it. JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 13 MATA Listserve вЂ” Who is in your office? scrawled on wall in background);вЂњFreedom From Want,вЂќвЂњFreedom of Worship,вЂќвЂњFreedom of SpeechвЂќandвЂњFreedom from Fear.вЂќ On a Friday afternoon in late March, I posted on the Listserve the following question:вЂњBy way of photos, artwork, statues, etc., who other than your family is depicted in your office?вЂќ As we have come to expect with less frivolous questions, the Listserve responses were instant, numerous and informative. Mentioned in the most were Mohammad Ali and Abraham Lincoln (although dissecting group sports pictures might have brought Larry Bird and David Ortiz near the top of the list). The following, presented sort of alphabetically, were all received by the end of the weekend and reveal us to be an eclectic group. вЂ”JJM C James Cardinal Gibbons of Baltimore Bob Marley Lady Godiva and horse The Marx Brothers 1890s female golfer Claude Monet Lady Justice (blindfolded of course) Saint Thomas Moore Theodore Roosevelt John Gotti Jack Nicklaus Rosie the Riveter Sinead OвЂ™Connor Ricky Rudd Tip OвЂ™Neill Sacco and Vanzetti The Hooters David Ortiz and Tony Graffanino (with respondent) Ansel Adams Billy Idol Al Pacino asвЂњScarfaceвЂќ John Adams Tom Hanks and Denzel Washington in вЂњPhiladelphiaвЂќ Al Pacino inвЂњAnd Justice for AllвЂќ Mohammad Ali Red Auerbach The Beatles (and Jeremy Hillary Boob Ph D. fromвЂњYellow SubmarineвЂќ) Larry Bird Bulldogs (canines, not sports teams) The Grim Reaper A (poisonous) Habu Snake floating at the bottom of a bottle of Saki Harlem Globetrotters (with respondentвЂ™s 8year-old son) Jimi Hendrix William Saroyan Strikers вЂ”вЂњThe Strike,вЂќ1886, and the Lawrence Bread and Roses Strike Purple TeleTubby Harry S. Truman Pink Floyd The Three Stooges Two pirates sword-fighting (print entitledвЂњAlternative Dispute ResolutionвЂќ) Honus Wagner Jethro Tull (I think Ian Anderson et al., not the 18th century agriculturalist) The Psychedelic Furs Warrant Don Quixote and Sancho Panza Mother Jones (вЂњPray for the dead and fight like hell for the living.вЂќ) Snidely Whiplash (a stuffed doll of in memory of departed MATA colleague John Fox) 2004 Red Sox Jesus of Nazareth CelticsвЂ™ Big Three (past and present) Martin Luther King Black cougars (presumably meaning big cats) Mickey Mouse Clarence Darrow Bob Dylan Lawyers вЂ” Colonial era, country lawyer and Honore DaumierвЂ™s lawyers Dale Earnhardt Bruce Lee Julius Erving John Lennon A Chinese fisherman Lady Liberty Frank and Ernest at the law library cartoon Abraham Lincoln Jeeves the Butler Living Colour Jerry Garcia A Samurai warrior Bobby Orr Amy Lowell (greeting the first butterfly of spring) MATAвЂ™s Affinity Partners MATA has developed partnerships with the following companies. Their services have been determined to be of the highest quality and beneficial for our members from a cost perspective. Their generous support of MATA helps us to complete our mission. Please consider using them whenever possible. More detailed information can be obtained on our website at www.massacademy.com or through the MATA office. ADP TotalSource Catugno Court Reporting & Sten-tel Transcription Citizens Bank Forge Consulting Injured WorkersвЂ™ Pharmacy Landy Insurance Margolis & Bloom Mediator NY Life Insurance Company Premiere Global Services TrialSmith West Group The roughly 35,000 people who were at Red Sox Opening Day 2005 to watch the Red Sox get their rings (and Yankees watching from the third base line) Frank Riccio (we were not told but can accurately speculate about which picture) Dave Roberts sliding into second with Derek Jeter attempting to apply the tag Norman Rockwell Prints:вЂњThe RunawayвЂќ(state trooper and little boy running away at soda fountain);вЂњThe Problem We All Live WithвЂќ (deputy U.S. marshals and little black girl being escorted to school with nasty epithet Wicked Witch of the West (вЂњThe book and musical Wicked tells the back story of the Wicked Witch and the hard life she had before meeting Dorothy in Oz. I keep it to remind myself that everyone of my clients has a back story and to not pre-judge people.вЂќ) Ted Williams Women at Work вЂњWeird AlвЂќYankovic Yoda A Zuni clown katchina doll (used by the Zuni in ceremonies to represent the foolishness and foibles of men) Legislation Committee Continued from page 7 ersвЂ™ compensation cases, if the insurer, employer and health care service provider cannot agree, or if equity and justice require a rate other than one otherwise provided A n A ct R elativ e to Im p ar ti al M edic al E x a m i ne r s Amends various provisions relative to the modification or discontinuation of workersвЂ™ compensation benefits by employers; amends regulations pertaining to the appointment of impartial physicians to examine beneficiary employees and use of the reports of impartial physicians to authorizing benefit changes; authorizes the use of re- ports as evidence in hearings pertaining to benefit discontinuation or modification; repeals provisions designating reports as binding on all parties; regulates the contents of medical reports; and designates failure to report to impartial physicians for examination as sufficient cause for suspension of workersвЂ™ compensation benefits The committee welcomes the ongoing participation of its members and invites more members to become involved. For copies of legislation, visit the Legislature website at http://www.mass.gov/legis/. For more information about MATAвЂ™s Legislation Committee visit http://www.massacademy.com/ma/. Join MATA now. Apply online at www.massacademy.com MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 14 JUNE 2009 Thanks to our Commonwealth Circle contributors We are grateful to each Circle Contributor for demonstrating a continuing commitment to MATAвЂ™s efforts to preserve and enhance the civil justice system. Li ber ty C lu b ($15,000 - $25,000) Leo V. Boyle Phillip J. Crowe FORGE Consulting, LLC Patrick T. Jones Andrew C. Meyer Michael E. Mone Douglas K. Sheff Neil Sugarman Patr iots C lub ($5,000 - $10,000) Andrew M. Abraham Catuogno Court Reporing Services & STEN-TEL Transcription Services Citizens Bank Joseph J. Cariglia John J. Carroll Jr. David P. Dwork Frederic N. Halstrom Paul E. Leavis Chris A. Milne Alan S. Pierce Joel H. Schwartz Jeffrey T. Scuteri Valerie A.Yarashus R evol uti ona r ies C lub ($1,000 - $5,000) Andrew M. Abraham Paul R. Aiken Steven M. Ballin Clyde Bergstresser Bruce A. Bierhans David R. Bikofsky Leslie E. Bloomenthal Alice Braunstein Marc L. Breakstone James E. Bryne Dennis J. Calcagno Thomas L. Campoli Gerard B. Carney Robert W. Casby Jeffrey N. Catalano Scott J. Clifford Sherrill Cline J. Michael Conley Kathy Jo Cook Donna R. Corcoran Walter A. Costello Jr. James T. Dangora Sr. Robert A. DeLello John L. Diaz John DiBartolo Simon Dixon Joseph R. Donohue William J. Doyle Jr. Paul J. Driscoll Peter L. Eleey Robert J. Feinberg Norman J. Fine John B. Flemming Michael A. Foglia Donald Gibson Ronald E. Gluck Annette Gonthier-Kiely Jeffery A. Gorlick Donald R. Grady Lawrence E. Hardoon Saba B. Hashem T. Mark Herlihy Martha Howe Michael R. Hugo Richard G. Jusseme Jonathan A. Karon Marsha V. Kazarosian John A. Keilty Timothy C. Kelleher III Paul F. Kenney C olon ials C lub ($500 - $1,000) Paul L. Cummings Chris Dodig Barry A. Feinstein Daniel Finbury Marvin H. Greenberg John D. Hislop, III Thomas G. Horgan Kenneth Levine William F. Looney Thomas J. Lynch Robert J. Marchand Joan McDonough Charles A. Moegelin Michael Najjar Gerald A. Palmer Jeffrey Petrucelly Judson L. Pierce Richard T. Tucker Kimberly Winter Thomas M. Kiley Richard A. Lalime Francis Larkin Marianne C. LeBlanc Bruce S. Lipsey Francis J. Lynch William P. MacDonald Mark A. Machera Angel Melendez Thomas P. Mulvey Jr. Vincent J. Murray Jr. Michael Najjar Robert M. Nathan Andrew D. Nebenzahl Kathleen M. OвЂ™Donnell Gary W. Orlacchio Jodi M. Petrucelli Richard J. Rafferty Jr. Michael R. Rezendes Frank J. Riccio Robson Forensic Inc. Robert M. Rosen Lloyd C. Rosenberg Steven P. Sabra Deborah M. Santello Frank R. Saia Peter J. Schneider Earlon Seeley Richard G. Shalhoub W. Thomas Smith Gerald W. Sousa Stephen K. Sugarman John St. Andre Jr. John J. Stobierski James A. Swartz Thomson-West William H. Troupe Edwin L. Wallace Paul F. Wynn Benjamin R. Zimmerman M inu tem e n C lu b ($1 - $500) Neil Burns Christopher M. Daily Robert A. DiTusa Richard K. Donohue Christopher W. Driscoll Neil R. Driscoll Karen J. Hambleton Mark W. Helwig Robert H. Glotzer John P. Riordan Gregory V. Roach Neil J. Roach Martin B. Schneider Barbara M. Senecal Frank J. Shealey Ronald Stoia Stephen D. Walsh Timothy H. White Learn the Secrets of the Top Mass. PlaintiffsвЂ™ Lawyers! в– What limits you can place on medical exams вЂ“ and how to avoid having the jury see an вЂњIMEвЂќ report. y se Toda tiffвЂ™s Ca rs: a Plain l Lawye ia inning Tr W p f To o crets usettsвЂ™ The Se assach vey d by M h N. Mul Reveale Elizabet в– The real reason insurers ask for mediation вЂ“ w uf F. Sarro Bogdano Camille Michael garman Boyle Su l V. ei o N Le e E. Mon Michael Tarricone Anthony and how to get the most out of it. в– The four most common expert witness mistakes. : alysis by With an nes, Jr. ter W. Ag Hon. Pe ard ss J. Bra ymond y Hon. 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JUNE 2009 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 15 Monthly Contributors 2009 M on th ly contr ib utor s MATAвЂ™s monthly contributors have made a tremendous commitment to MATA and to the American Association for Justice on behalf of their clients and their profession. Their dedication to the preservation of the jury system has made it possible for MATA and AAJ to continue to protect consumers against tort reform movements that threaten the rights of citizens every day. Approximately 80 percent of each contribution goes directly to MATA to fund items such as the lobbyists, and a portion goes to Lawyers for Action, a political action committee, which provides support to state political legislators and candidates. The remaining 20 percent of the monthly con- tribution goes to AAJвЂ™s PAC to support federal legislators and candidates. These contributions make it possible for both MATA and AAJ to continue and increase their political efforts, both locally and nationally. They allow for both organizations to educate the public and politicians and to directly impact consumers via the Legislature. We are grateful for the support our monthly contributors provide and for their dedication to the rights of consumers and victims. $1,000 car d Leo V. Boyle Philip J. Crowe Jr. Patrick T. Jones Andrew C. Meyer Jr. Michael E. Mone Neil Sugarman $500 car d Chris A. Milne Douglas K. Sheff $300 car d David R. Bikofsky Michael B. Bogdanow John J. Carroll Jr. Robert W. Casby Donna R. Corcoran Robert A. DeLello Gerard J. DiSanti Frederic N. HalstrГ¶m Timothy C. Kelleher III Paul F. Leavis Marianne C. LeBlanc Jodi Petrucelli Peter J. Schneider W. Thomas Smith Valerie A.Yarashus $200 car d Paul R. Aiken Michael R. Hugo Alan S. Pierce $150 car d Andrew Abraham Clyde D. Bergstresser Alice Braunstein Marc Breakstone Kathy Jo Cook J. Michael Conley Walter A. Costello Jr. Simon Dixon Paul Driscoll Norman J. Fine Donald Gibson Ronald Gluck Annette Gonthier-Kiely Saba B. Hashem Jonathan Karon Marsha V. Kazarosian Alan J. Klevan Mary Jane McKenna Michael Najjar Andrew D. Nebenzahl Richard J. Rafferty Jr. Frank J. Riccio Lloyd C. Rosenberg Leonard A. Simon Stephen K. Sugarman Edwin L. Wallace Kimberly E. Winter Paul F. Wynn Benjamin R. Zimmerman Michael R. Rezendes Frank R. Saia Deborah M. Santello Richard G. Shalhoub John J. St. Andre Jr. $100 C ar d Steven M. Ballin Bruce A. Bierhans James E. Byrne Jeffrey N. Catalano James T. Dangora Sr. John L. Diaz William J. Doyle Jr. Peter L. Eleey John B. Flemming Donald Gibson Jeffrey A. Gorlick Donald R. Grady John R. Keilty Thomas A. Kiley Richard A. Lalime Mark A. Machera Angel Melendez Vincent J. Murray Jr. Kathleen OвЂ™Donnell Gary W. Orlacchio $50 C ard Chris Dodig Martha Howe Richard Jussaume William J. Keller Francis J. Larkin Bruce S. Lipsey Robert R. Marchand Charles B. Moegelin Robert M. Nathan Jeffrey Petrucelly Judson Pierce Richard Tucker Robert Zaffrann $25 C ard Neil Burns Claudine A. Cloutier Christopher M. Dailey Karen J. Hambleton Barbara M. Senecal ADR/EXPERT & LEGAL SERVICES ALTERNATIVE DISPUTE RESOLUTION Jennifer G. Frankel H O N. B E V E R L Y W. B O O R S T E I N пљ® R E T. пљЇ D I S P U T E R E S O LU T I ON Boston Law Collaborative, LLC LawвЂўMediation/ArbitrationвЂўConsultingвЂўTraining During these diп¬ѓcult times dispute resolution alternatives make sense! Bring your clients for mediation, arbitration, case evaluation in family, probate, and mental health matters. Justice Boorstein has 45 years of expertise to bring to the table. 99 Summer Street, Suite 1600, Boston 617-439-4700 or visit our web site: www.BostonLawCollaborative.com LetвЂ™s Reason Together. David Hoffman, Esq. пќґпќҐпќ¬ (617) 964-8744 www.beverlyboorstein.com To be listed in the ADR Director y, pl ea s e c a l l S o p h i e B e s l a t (800) 444-5297 x 12134 or (617) 218-8134 BOSTON AREA MEDIATION SERVICES, INC. Northeast Consulting Engineers, Inc. Dr. John Mroszczyk, PE, CSP 95 West Elm Street Brockton, MA 02301 Past Chair, ABA Secti on of Dispute Resolution Telephone: 866-945-BAMS (2267) 508-588-5800 Fax: 508-586-8869 (Mediations also held in Wellesley, Newton and Concord) www.bostonareamediation.com To be listed in the Expert & Legal Services Director y, p l e a s e c a l l M i c h e l l e Ce r u l l i a t (800) 444-5297 x 12213 or ( 6 17) 21 8- 82 13 Vehicle Accident Reconstruction, Failure Analysis, Forensic Engineering, Mechanical & Product Design, Construction & Industrial Accidents, Slips, Falls, Premise Defects, Safety Engineering 74 Holten Street, Danvers, MA 01923 firstname.lastname@example.org (978) 777-8339 FLORIDA PERSONAL INJURY CASES We co-counsel and share fees with out-of-state attorneys, pursuant to Florida Bar guidelines. 1-800-GOLD-LAW. Law Offices of Craig Goldenfarb, P.A. www.800GoldLaw.com Cases that have made a difference If you have or have had a case that has made a substantial social or legal difference, such as creating a new law or making a product safer, please contact Sheila Sweeney at 781-425-5040 or Andrew Abraham at 617-330-1330. MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 16 Bermuda JUNE 2009 KARAS TOURS Elbow Beach Hotel 32ND ANNUAL Fall Conference NOVEMBER 4-8, 2009 Elbow Beach Bermuda Hotel Bermuda beckons and we invite you to join us at the fabulous Elbow Beach Hotel for our 32nd Annual Fall Conference and Retreat. The Elbow Beach Bermuda Resort offers an informal elegance and old world charm nestled within fifty-five magnificently landscaped acres overlooking a natural pink sand beach, featuring 244 guest rooms, including junior suites & ocean front cottages. REGISTRATION FEE: Includes: $75 for Members $150 for Non-Members $25 Activity Fee вќ‚ Round-trip transportation between Boston or other city and Bermuda вќ‚ Round-trip transportation between the airport and hotel in Bermuda fee included on your billing This complete package is only вќ‚ Water-view accommodations for four nights $979 at the magnificent Elbow Beach Bermuda Hotel per person based on double occupancy plus 15% tax and service Single accommodations when available $439 additional charge вќ‚ Welcome get-together cocktail party Limited space available at this rate. Alternate departure cities available. вќ‚ Escort traveling with the group throughout Premier Lanai Accomodation Upgrade вќ‚ Extended stay available $140 per person, double occupancy вќ‚ All hotel taxes and gratuities 508-480-8300 FAX 978-443-9027 Optional Breakfast Plan 4 Full American Breakfasts - $130 pp e-mail: email@example.com в—† в—† 800-840-3441 RESERVATION APPLICATION Enclosed is my check in the amount of $________($200 per person) in deposit for the MATA 32nd Annual Fall Conference in Bermuda, departing November 4, 2009 for the following: ( ) Single ( ) Double ( ) Boston ( ) Other City ( Name(s) _______________________________________ ) Optional Breakfast Plan ( ) Premier Lanai Upgrade ______________________________________ Please include first and last name of each traveler. Address ________________________________________________________________________________ City _____________________________________ State ____________ Zip Code ___________________ Telephone (9-5)___________________________(after 5) ________________________________________ Signature __________________________________ Fax ________________________________________ Meeting Participant(s) ________________________ Title ________________________________________ Address _______________________________________ ________________________________________ Mail to: Karas Tours, P.O. Box 508, Sudbury, MA 01776 Prices are subject to fuel surcharge. Since Bermuda is an approved destination, travel and accommodations may be tax deductible. Please consult your tax advisor. PASSPORTS ARE MANDATORY FOR TRAVEL TO BERMUDA.