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Public respect and trust: how to restore and deserve it

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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 America’s
most-respected
trial consultants, a three-time bestselling trial advocacy author and jury
researcher. His book,“David Ball on
Damages,”has changed the face of
American trial advocacy, and he is the
country’s most in-demand CLE lecturer. In 2002 he received NCATL’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 – and is
reprinted with the gracious permission
of that organization as well as Dr. Ball.
Talk doesn’t cook rice.
—Chinese proverb
Deeds, not Words
—Max Roach (American jazz
musician and composer)
You know I’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.
—Janet Jackson
Please don’t explain. Show me!
—“My Fair Lady”
Nay, Everyman, I will bide with thee,
I will not forsake thee indeed;
Thou shalt find Good Deeds a
good friend at need.
—the character Good Deeds in
“Everyman,” a medieval drama
The Lord is a God who knows,
and by Him deeds are weighed.
—1 Samuel 2:3
Just do it!
—Nike
Words are no deeds.
—Shakespeare (“HenryVIII,”III,2)
Words to the heat of deeds too
cold breath gives.
—Shakespeare, (“Macbeth,”II,1)
Talk is gibber-jabber.Action is truth.
—Catherine Walsh, 3rd grade
teacher
There is no effective weapon
against the persuasive power of
good works.
—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 third“knows”you endanger
their well being: their jobs, their
health care, their families, their religion. They“know”you make your
exorbitant living though trickery and
sham cases.They“know”you profit
from the misery of others.
A decades-long campaign against
you has brought them to this point.
That campaign — carefully planned
and executed — 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 the“Commonwealth
Readiness Project,”a 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 — 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 administration’s agenda.
Job creation and economic
growth in Massachusetts have been
a large part of the Patrick administration’s agenda, even more now
than when the governor began his
term in 2006.The Patrick-Murray
administration’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 — trying to get beyond“the law”and generic trial techniques, and focusing
specifically on how to win
plaintiffs’personal injury trials. It soon became apparent
that a new publishing company predominates this niche, publishing and distributing some of today’s most important plaintiffs’trial
materials — Trial Guides.
Trial Guides describes itself as“a
new, cutting edge, legal media company dedicated solely to helping civil
plaintiffs win.”The company’s website declares,“Plaintiff’s law is our
passion — we want to help you and
the people you serve.“ In other
words,Trial Guides is for us!
Trial Guides, based in Portland Oregon, started in 2003 with Aaron DeShaw’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 Guides’catalogue tells us that in a short
time the company has greatly
advanced its mission.
David Ball on Damages The Essential
Update — which some say revolutionized the courtroom for plaintiffs’
attorneys — 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 Friedman’s must-read trilogy —
Rules of the Road (with Patrick Malone),
EDITOR’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 Cancer”pledge 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 Citizens’ Concerns.
Bar Association Legislator of the Year Award, the
Before his tenure on Beacon Hill, DeLeo
AMVET’S Legislative Pilgrim Award, the Masserved on the town of Winthrop’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 Society’s“Making Strides Against
stitute a maximum limit on the speaker’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
Court’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: “The
Petitioner Wyeth manufactures the anti-nausea drug Phenergan. After a clinician injected
respondent Levine with Phenergan by the �IV
push’ method, whereby a drug is injected directly into a patient’s vein, the drug entered
Levine’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
Levine’s injury would not have occurred if
Phenergan’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 Wyeth’s argument that
Levine’s failure-to-warn claims were preempted by federal law because Phenergan’s
labeling had been approved by the federal
Food and Drug Administration. The Vermont
Supreme Court affirmed.”
The Supreme Court held that federal law
does not pre-empt Levine’s claim that Phenergan’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 filed“An Act to Reform, Rebuild and Renew the Transportation
System of the Commonwealth for the 21st Century.” 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.
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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 — the rescue doctrine.
We look forward to the court’s opinion on this
important issue.
It has been extremely encouraging to see a
positive trend in plaintiffs’ 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
plaintiffs’ 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
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MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS
4
JUNE 2009
MATA remembers the late Reginald C. Lindsay
“Jus tice is the g r eat inter es t of m an on
ear th” — 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 people’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 (“Whitey”) Bulger and members of his gang.
ship program offered by the U. S. District Court for
Judge Lindsay found the FBI’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,
“Superemos,”who 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
Loewinthan’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.
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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 MATA’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
“Chris 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. Chris’s determination
case, realizing that the health and
during a very stressful time was
future of all the employees, prisonpriceless.”
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 MATA’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 MBA’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 Milne’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
Lawyers’ Group spearheaded another Habitat
for Humanity Project in New Orleans and a
hosted several networking events. The
Women’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:“People live in one another’s
shelter.”The 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 state’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 through“A Better Chance,”a 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 — and are
not truly educated.”Moe Levine’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 Levine’s teachings ever published. Meanwhile, the presently
available Moe Levine – The Historic Recordings, allows us to experience on CD some of Levine’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 Barton’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 community“to supplement your participation in AAJ.”The
incipient on-line community already includes two
very promising free resources — 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 contractor’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)“is 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.”The Court rejected the Occupational Safety and Health Review
Commission decision as an abuse of discretion. The case does not put to rest all controversy about“controlling employer”OSHA 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 plaintiffs’ bar
Continued from page 1
Polarizing the Case, and Becoming a Trial Lawyer, are
all published by Trial Guides.
“Trial Guides, Friedman says,“is doing what
no other publisher has ever done—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.”Indeed,
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 Can’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 suggests“A 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 “ The Vanishing Civil Jury Trial,”
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 network’s podcasts are available for free
at www.legaltalknetwork.com.
�Wyeth v. Levine’ addresses drug companies’ 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 Court’s key findings were:
Dr ug s af ety, in clud ing th e ad eq u acy of a
d r ug ’s war n ing lab el, is th e “ul tim ate r es pons ibi lity ” of the m anu factur e r “at a ll
tim es .”
“It 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.”
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 a“longstanding coexistence
of state and federal law and FDA’s traditional
recognition of state-law remedies.”
“As it enlarged the FDA’s powers to�protect the
public health’and�assure the safety, effectiveness
and reliability of drugs, Congress took care to preserve state law’”and“state common-law suits
�continued unabated despite FDA regulation.’”
“Congress did not provide a federal remedy
for consumers harmed by unsafe or ineffective
drugs … 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.”
“State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.”
State tort suits“serve a distinct compensatory
function that may motivate injured persons to
come forward with information.”
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 .
“The 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.”
“[T]he FDA long maintained that state law
offers an additional, and important, layer of
consumer protection that complements FDA
regulation.”
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 “pr e am b les” of
f eder al r eg ulation s is not s up por tab le a nd
d oes not “m e r it d efe r ence.”
“[T]he FDA’s 2006 preamble does not merit
deference”because the public had“no notice or
opportunity to comment”; is“at odds with the
available evidence of Congress’ purpose; and it
reverses the FDA’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 FDA’s regulation of
drug labeling during decades of coexistence.”
“[T]he FDA’s recently adopted position that
state tort suits interfere with its statutory mandate is entitled to no weight.”
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
organization’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.
MATA’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 insurers’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 attorneys’ 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 attorneys’ 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
person’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
Workers’ Compensation legislation
A n A ct R elativ e to Wor ke r ’s C om pe nsa tion
Amends provisions relative to the payment of
workers’compensation benefits by insurers; requires insurers to pay workers’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
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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
Workers’ Comp Bench Bar 2009
SPONSORS
Injured Workers’ Pharmacy
Law Offices of James S. Aven
Curtin, Murphy & O’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-“reform” 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-“reform”brilliantly and without opposition spun and distorted such truths into a fullblown, nightmarish mix that turned trial
lawyers and judges into terrorists – at least in
the minds of a third of the public.
Tort-“reform”beliefs are now so firmly embedded — and so firmly supported by a third of
every community — that they cannot be
changed by anything our side says, no matter
how we say it or how often. It’s too late for
words. When a trial lawyer or a trial lawyer’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. That’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 — 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-“reformed”juror’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:
“We’re here for the little guy.”Tort-“reformed”citizen response?“Yeah, you love it when a little guy
gets hurt because you make lots of money.”
Or, “We’re here to protect families.”Tort-“reformed” translation:“Yeah. Your families. Not
ours.You’re taking away our health care, our
jobs, and our financial well-being.”
Or, “We’re here for justice.”Tort-“reformed”
translation:“You love justice because you make
a fortune from it.”
You can even lose your case simply by starting your opening with,“Ladies and gentlemen,
the truck driver’s carelessness hurt my client
and we are here for justice.”Tort-“reformed”
translation?“Here’s one of those greedy
lawyers we’ve been warned about.”
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.“When a
trial lawyer uses a fact or statistic, it is a lie.”
In our younger years, most of us believed
this:“If 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.”Remember when you thought
that? Long, long before your first trial, I bet.
Not even Gandhi, Jesus, or Martin Luther King
Jr., — extraordinary deployers of words — could
rely on words alone.They needed acts and even
miracles to persuade. Fortunately, we don’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 called“Save the cat.”(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. (It’s the
opposite of kicking the puppy.)
How do we know it’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 – no matter how oratorically soaring the words may be.
Re-read Mark Antony’s“oration”– how he
turned the angry Roman crowd that had been
cheering Caesar’s assassination. Mark Antony’s
brilliance lay not in his words.The crowd did
not turn his way until he pointed out what
Julius Caesar had done.
When WalMart’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 — and even facts — in the world are
useless. Just as you can’t win a case by stamping
your foot and saying,“My client is right so give us
money!”Neither can you change the minds of
tort-“reformed”jurors by stamping your foot and
saying“Trial lawyers are good, so trust us!”
I think I hold the world’s record for the number
of tort-“reformed”jurors 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 –
and necessary – purposes. But they illuminate
nothing about how citizens influenced by tort“reform”think 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. Here’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 — yet reap
the benefits of those fights — 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 – 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 – Don Keenan –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 he’s
doing right by these kids. But in the dark of the
night, Keenan finds himself thinking,“Do I really want to lie on my death bed someday
thinking that all I’ve been in my life is the guy
who comes around afterwards to clean up?
Just the garbage man?”Keenan decided it was
not enough. So, he thought, Why not keep kids
from getting hurt in the first place?
Now there’s an act against a trial lawyer’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
– so parents could take the list to their kid’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 — if still
necessary — 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,“I
care! I care! Watch me feel how I care!”Instead,
he acted — and to this day continues to act —
to help more and more — in ways that do not
simultaneously enrich himself.
Because, as everyone knows, saving the cat does
not help you when you’re paid to save the cat.
Aside from protecting innumerable kids,
Keenan’s good works also gave him a foot in
the door of the tort-“reformed”jurors.
Over the years, Keenan did more. His Keenan
Kids’ Foundation is a major public force in protecting children in every way they need protecting. And his recent book – 365 Ways To Keep Kids
Safe – carries his work even farther.
Did Keenan’s good deeds help? Well, when
he sets foot in trial, there is no tort-“reform.”
Jurors know– or quickly find out when they
check him out on line, as some on every jury
do regardless of admonitions from the bench
— that Keenan is the guy who protects kids.
So when they see him here protecting the
child in this particular case, the jurors know
he’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 — 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 Oprah’s help, trial lawyers can easily —
and inexpensively — 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 the“good works”
principle a Los Angeles CLE seminar.“Go do
good works!”I pleaded, as I am pleading now.
A lawyer raised his hand and asked,“What
good is there we can do?”He 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 he’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, “Simply go do the good
thing nearest you. (“Do the duty which lieth
nearest to thee! Thy second duty will already
have become clearer.”) Keenan was doing
playground cases. He does kid’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 – before they get hurt.
It’s an easy club to join: Do what’s nearest
you:. What’s in your world that you can help
make safer, or better, or easier for other people
— and that does not simultaneously profit you?
Here’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,“I
have heard of this kind of thing happening to
other people. I never thought it would happen
to me.”He 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 term“Trial Lawyer”has some
new respect — because they called the air-conditioner program“Trial Lawyers Are Cool.”
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. He’s become a town
hero and institution. Do you think tort-“reform” 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 the“We-are-such-good-lawyersand-we-will-win-your-case” site, or the “Look-at-mypicture-don’t-I-look-professional!” site, or the“Here’s
me in my library of books I haven’t opened in a
decade”site, or the “Here’s my great victories where I
got juries to give wads of money that other lawyers
wouldn’t have gotten,” site, lawyers are now trans-
11
forming their web sites into help centers.
If you do the same, then when jurors look you
up — as they will — they’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 — 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. Don’t worry; if they need you’ll
they’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 family’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 Johnson’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. It’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 he’s about
safety, not greed.That pays off in every trial.
And it helps innumerable people.
A potpourri of good works
Now, you don’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 school’s or agency’s board and
publicly seek support for it.
Run an“emergency assistance”hotline on
your web site – 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
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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—
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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
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Return to:
MATA
8 New England Executive Park
Suite 160
Burlington, MA 01803
_____AMEX
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_____CHECK ENCLOSED
Phone: (781) 425-5040
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Signature:_________________________________________________________________________
June 16, 2009 at 4 p.m.
Moakley Federal Courthouse
Reception immediately to follow
At The Daily Catch
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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 – free. Advertise to attract attendees. (Learn how to teach
by Googling TEFL (“Teaching English as a Foreign Language”).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 can’t afford them.
Become a visible advocate for social agencies
– MADD,YMCA, etc.
Post on your web site the fact that hundreds
of people needlessly die every day in American
hospitals – 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 — new and used — 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 — flood, hurricane, etc. — 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 state’s trial lawyer’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 you’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 children’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,
“We do not want to see you as a defendant in
court, so please: Don’t text message while driving.”
Or,“If you exceed the speed limit in a school zone
we will come get you in trial. So slow down.”
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:“Support Mothers
Against Drunk Driving.”Or,“Make trial lawyers
obsolete: Do everything safely.”Or,“Safety First.
We already have enough business.”
Rejecting cases
There’s a right way and a wrong way to reject
cases.The wrong way is how it’s almost always
done. Debra Miller, one of my partners at Miller
Malekpour & Ball, has a better way. It requires
more than just saying“no.”It 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 — doctors, psychologists and
grief counselors — 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 can’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 – unless you are prepared to give them
something in return more than a chance you’ll
accept them. Stop the ghastly practice of turning
people out without helping them – 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
“know”you are made of nothing but greed.
Think about how many such cadres have
you created so far.
This means that most trial attorneys –– each
one on his or her own – have turned hundreds
and even thousands of folks who were not ini-
tially tort-“reformed”into some of the most
virulent tort-“reform”jurors who will ever be
called for jury duty. Maybe even your jury. By
the time they get there, you’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, we’ll grow an army of grateful
(and surprised) folks in every community –
folks who, in return, will help our cause.
More importantly, you’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 – but as one of
their major activities. The organizations will be
likely to do so – 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
don’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 –
but easy enough to fund. Obviously you can’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 America’s
great law firms heard me teach all of the above.
JUNE 2009
“No!”she said.“My firm has done good works
for years — and we still can’t win a case!”She
gave me an annual report of all their good
works. Problem was, the public knew nothing
about them. Among Jesus’s first recorded
words are these:“Neither 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.”Your 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 site’s main page, with
everything else on sub-pages. But it’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 kid’s name, or some other name.
Your political views are none of a juror’s business.
Here’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-“reform”attacks.
We can regain the field, but we’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.“Ball!”He yelled.“You ruined my life!”I
felt I needed no more of this conversation and
started away. But he grabbed me and continued. He said,“Dammit, Ball, you told us to do
good works. Near-at-hand works.”
I looked around for accessible escape routes.
He continued:“I do cases for kids who are serious burn victims. I know that the hardest
thing — beyond even the pain — is the disfigurement. It’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
don’t earn a cent from it! What the hell?!?”
Was he gonna punch me out?
Then he — New Jersey attorney Sam Davis
— says,“And I have never been happier in my life.”
(See http://burnadvocatesnetwork.org/. New
Jersey’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-“reform”in
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
won’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 — Who is in your office?
scrawled on wall in background);“Freedom
From Want,”“Freedom of Worship,”“Freedom of Speech”and“Freedom from Fear.”
On a Friday afternoon in late March, I posted on the Listserve the following question:“By
way of photos, artwork, statues, etc., who other
than your family is depicted in your office?” 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. —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 O’Connor
Ricky Rudd
Tip O’Neill
Sacco and Vanzetti
The Hooters
David Ortiz and Tony Graffanino (with respondent)
Ansel Adams
Billy Idol
Al Pacino as“Scarface”
John Adams
Tom Hanks and Denzel Washington in
“Philadelphia”
Al Pacino in“And Justice for All”
Mohammad Ali
Red Auerbach
The Beatles (and Jeremy Hillary Boob Ph D.
from“Yellow Submarine”)
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 respondent’s 8year-old son)
Jimi Hendrix
William Saroyan
Strikers —“The Strike,”1886, and the
Lawrence Bread and Roses Strike
Purple TeleTubby
Harry S. Truman
Pink Floyd
The Three Stooges
Two pirates sword-fighting (print entitled“Alternative Dispute Resolution”)
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 (“Pray for the dead and fight like
hell for the living.”)
Snidely Whiplash (a stuffed doll of in memory
of departed MATA colleague John Fox)
2004 Red Sox
Jesus of Nazareth
Celtics’ Big Three (past and present)
Martin Luther King
Black cougars (presumably meaning big cats)
Mickey Mouse
Clarence Darrow
Bob Dylan
Lawyers — Colonial era, country lawyer and
Honore Daumier’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)
MATA’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 Workers’ 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:“The Runaway”(state
trooper and little boy running away at soda
fountain);“The Problem We All Live With”
(deputy U.S. marshals and little black girl
being escorted to school with nasty epithet
Wicked Witch of the West (“The 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.”)
Ted Williams
Women at Work
“Weird Al”Yankovic
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
ers’ 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 workers’
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
workers’ 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 MATA’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
MATA’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. O’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. Plaintiffs’ Lawyers!
■What limits you can place on medical exams –
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Neil Sugarman • Anthony Tarricone
Plus commentary by eight Superior Court Judges.
0226HA
commentary pre-instructions and juror questioning
of witnesses.
в– The best way to use high-low agreements,
Mary Carter agreements, and structured settlements.
в– How to use Daubert/Lanigan to attack a
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ORDER YOURS TODAY!
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Only $49.95 (MATA members, enter MATA at checkout and save 20%!)
JUNE 2009
MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS
15
Monthly Contributors 2009
M on th ly contr ib utor s
MATA’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 AAJ’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. Halström
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 O’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
Law•Mediation/Arbitration•Consulting•Training
During these difficult 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
Let’s Reason Together.
David Hoffman, Esq.
 (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
nce3@verizon.net
(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: karastours@aol.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.
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