Coffee, Beignets & Business

Posted on October 15, 2012 02:46 by Laurie Miller

New Orleans is known for many things – Bourbon Street, the French Quarter, the DRI Annual Meeting, Mardi Gras, hurricanes (the weather and the drink), jazz music, and so much more.  For me, when the DRI Annual Meeting comes to New Orleans it is all about two things – Beignets and Business.  The DRI Annual Meeting is my opportunity to reconnect with colleagues, build relationships with clients, engage with potential referral sources, work my way up in DRI leadership and eat beignets.  No matter what area of law you practice, no matter how long you have been in practice, no matter where you practice, and no matter the size of your firm or company the DRI Annual Meeting has something for you – the potential  for new business.  Come to the Big Easy.  Bring a client.  Arrange to catch up with an old buddy.  Meet some new people.  Have a café latte and a beignet, but don’t do it alone.  Invite someone to go with you - it just might land you some business.  Registration for the Annual Meeting and one trip to Café Du Monde (with two large café lattes and an order of beignets) will cost less than $1000.  If you get a case in the next year from someone you spend time with at the Annual Meeting and bill even 5 hours on it, at $200 per hour, you’ve paid for your registration.   Can you afford to pass up the opportunity for Beignets and Business?  Hope to see you in New Orleans and if I happen to ask you to grab coffee with me, you’ll know why.

 

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Getting More Networking Bang for Your CLE Buck

Posted on February 19, 2010 10:41 by Laurie Miller

By now you have probably heard about the fabulous program planned for the 2010 DRI Business Litigation and Intellectual Property Seminar in New York City April 15-16, 2010. If you haven’t, click here to see the brochure.

There are over 12 hours of CLE planned and all will be presented by top-notch speakers. If you have checked airfare you have probably also seen that there are some great low fares into LaGuardia, JFK and Newark. We also have a great rate at the Hilton NY – only $299 a night – right in the heart of New York City.

But did you know that this seminar could also be your major marketing and networking event this year? Get more networking bang for your CLE buck! There is much more to the 2010 DRI Business Litigation and Intellectual Property Seminar than just CLE and committee meetings. There are cocktail receptions each evening, networking breaks throughout the program, continental breakfasts each morning perfect for catching up or meeting new folks over a cup of coffee. But more than that, there are fabulous social/networking events planned during this seminar. These events will be smaller and allow more one-on-one time to really meet and get to know people – people that could become your clients or send you your next big case.

After an exciting day of speakers at the 2010 DRI Business and Intellectual Property Litigation Seminar, it will be time to enjoy some of what New York has to offer. Social events are still being planned and will, of course, include dine-arounds at famous eateries and not-so-famous places you will be happy to have discovered. On Thursday night, April 15, there are 3 very special social/networking opportunities. We need RSVP’s for these events by February 28, 2010 so that tickets can be purchased and space can be reserved.

See the World Champion Yankees!
Put on your pinstripes and take the B-train to the brand-new Yankee Stadium to see the World Champion Yankees take on the California Angels. In this early season game the Angels will have something to prove after losing the ALCS to the Yankees in Game 6 last year. It promises to be exciting baseball. We are arranging a block of seats for the game with ticket prices between $90 and $150 per seat depending on availability. If you are interested in sitting with the group, please let Heidi Goebel know at heidi.goebel@chrisjen.com by February 28. While tickets may still be available afterwards, if you want to be part of the group let her know before the deadline.

Check out the Joe Bonamassa Concert!
Slip on some dark shades and stroll down Sixth Avenue to historic Town Hall on 43rd Street for an evening of music with legendary bluesman Joe Bonamassa. Bonamassa has been voted "Best Blues Guitarist" by Guitar Player magazine three years in a row. He plays a “fusion of traditional roots blues with rock and roll guts, blues-rock guitar virtuoso.” You will agree with our own blues aficionado, Joe Fortner, when he says that Bonamassa is “phenomenal.” You can see and hear him at http://www.youtube.com/watch?v=jMXXnLSRdBE Seating is very limited so if you are interested, let Joe know as soon as possible. Joe’s e-mail is Fortner@halloran-sage.com. Tickets are around $70. Town Hall is a small venue (and therefore an excellent performance space), so you need to commit to coming by February 28 if you want to be part of the group.

Wine & Dine & Learn!
Don your apron and toque and take the A-train (or cab) a few blocks downtown to the Institute for Culinary Education. See the details on the Corporate & Private Events page at www.iceculinary.com. The evening will start with wine and hors d’oeuvres while you meet your Chef-Instructor and learn what is on the menu. Then it’s into the kitchen to prepare a gourmet meal and learn some tricks of the trade. Finally, you’ll sit down to a full service dinner and enjoy the fruits of your labor. It is lots of fun and a perfect opportunity for serious networking. The cost is $241 per person. If you are interested, please let Steve Lieb know at slieb@flhlaw.com by February 28 so we can reserve the space.

If I can help, or if you have any questions, feel free to let me know. On behalf of the DRI Commercial Litigation Steering Committee, I hope to see you in NY in April.

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Why You Should Budget For This Seminar:

The 2010 DRI Business Litigation and IP Seminar will be held April 14-16 at the Hilton New York in exciting New York City. This seminar will feature all the things you’ve come to know and love in DRI seminars including outstanding CLE presentations from the nation’s best trial lawyers and seasoned in-house counsel along with ample opportunities for networking, dine-arounds and, of course, numerous social activities on Wednesday, Thursday and Friday nights! Check out the attachment for all the details. Just so you can name drop and have something to look forward to, in-house counsel from Deere & Company, 3M, Wyndham Worldwide, Fidelity, Ford Global Technologies and more will be on hand for this Seminar to provide you with the very best and cutting edge information for your practice.

Ways to Save Money Attending This Seminar:
The best way to save money attending this Seminar is to book your travel now! We all know that waiting until the last minute to book a flight more than doubles the cost in many cases. Here are a few sample fares to LaGuardia located via a popular travel website in mid-January. Fares to JKF and Newark were similar.

Departing April 14, 2010 and returning April 17, 2010:

Atlanta to LaGuardia $ 203
Birmingham to LaGuardia $ 271
Charlotte, NC to LaGuardia $ 187
Chicago (ORD) to LaGuardia $ 139
Los Angeles to LaGuardia $ 217
Boston to LaGuardia $ 232
Nashville to LaGuardia $ 255
St. Louis to LaGuardia $ 145
Washington (DCA) to LaGuardia $ 224
Philadelphia to LaGuardia $ 231

Another great way to save money on this Seminar is to make your hotel reservations early while rooms are still available in the discounted DRI block. Call the Hilton New York directly at (212) 586-7000 and mention DRI’s Business Litigation and IP Seminar for a discounted rate of $299 for a single/double room. Check out the hotel at:

http://www1.hilton.com/en_US/hi/hotel/NYCNHHH-Hilton-New-York-New-York/index.do

Another great way to save big money on this Seminar is to start getting your friends and colleagues to join DRI. For every new, paying member of DRI you get to join (they need to put your name on their application), you will receive a $100 certificate from DRI which you can use toward registration fees for this (or any other) Seminar. If you are a Young Lawyer and have never used your free seminar certificate, USE IT NOW! Even if you can’t find the certificate, just call DRI at (312) 795-1101 and ask about using it.

Finally, another way to consider saving money while attending this Seminar is to bring your family with you. Your firm will already have paid your travel plus several days of hotel and food expense. Tack on a couple extra days to your trip (Saturday and Sunday) and take your whole family to NYC for about half the cost. Plus, we are planning a ton of great social activities that the whole family will enjoy during the seminar itself. Check out the attachment to this message for all the details and stay tuned for more information.

Don’t wait another day! Plan and budget now for the best Business and IP Seminar of 2010 and join us April 14-16, 2010 for the DRI Business Litigation and IP Seminar in fabulous New York City!

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ATTENTION BUSINESSS & IP LITIGATORS

Posted on November 24, 2009 02:43 by Laurie Miller

Please save the date of April 15-16, 2010 for the DRIBusiness and IP Litigation Seminar: What Smart Companies and Their Lawyers Needto Know for the Next Decade. New York City will play host to what promises tobe the premier seminar of the year for business, commercial and IP litigatorsas well as in-house counsel who are faced with complex business, commercial orIP litigation matters.

The beautiful New York Hilton will serve as the backdrop for the seminar andoffers graciously appointed guest rooms, state of the art technology to keepyou connected to your clients, colleagues, friends and family, and comfortableconference room space. Check it out for yourself:
http://www1.hilton.com/en_US/hi/hotel/NYCNHHH-Hilton-New-York-New-York/index.do

Don’t come by yourself! Bring your family, your colleagues or, even better,bring a client and treat them to a weekend in New York City! Visit the Statueof Liberty, the 9/11 Memorial and the Empire State Building, catch a show onBroadway, enjoy world class shopping and food and so much more. The WorldSeries Champion New York Yankees will be in town and will be playing theAnaheim Angels on April 13-15 and the Texas Rangers April 16-18.

The program brochure will be available soon. So stay tuned to www.DRI.org for more information about theprogram topics, speakers, networking opportunities, CLE credit and all theother great things you have come to rely on DRI to provide. In the meantime, ifyou have any questions, please contact:

Laurie Miller
Ellis & Winters LLP
1100 Crescent Green Drive
Suite 200
Cary, North Carolina 27518
(919) 865-7001
laurie.miller@elliswinters.com
Seminar Marketing Co-Chair


MARK YOUR CALENDARS FOR APRIL 15-16, 2010! We hope to see you in New York!

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Plain English Jury Instructions

Posted on September 10, 2009 03:27 by Laurie Miller

Jury instructions are one of the most important, yet most overlooked, parts of a trial. Consider how jury instructions are presented for a moment. The only impartial participant in the trial process, the person sitting up on a pedestal above everyone else in the courtroom, cloaked in a robe, will read the instructions to the jury and tell them how to decide your client’s fate. Merely considering how jury instructions are delivered illustrates their importance. Slaving away over a perfect legally correct set of instructions could all be for naught if the jury cannot understand the instructions they are given.

I. A Background Look at Comprehension of Jury Instructions

There is no shortage of social science research on jury behavior. Numerous studies have demonstrated how juries deliberate, how jurors think and the extent to which they understand jury instructions. For years, research has suggested that jurors do not understand the instructions given to them at the conclusion of a trial. See Nancy Marder, Bringing Jury Instructions into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454 (2006); Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701 (2000); Ronald W. Eades, The Problem of Jury Instructions in Civil Cases, 27 Cumb. L. Rev. 1017 (1996-97); Geoffrey P. Kramer & Dorean M. Koenig, Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project, 23 U. Mich. J.L. Reform 401, 432 (1990). Evidence suggesting that juries do not understand jury instructions comes from several sources, including jury questions posed to the court during deliberation, case law from states that allow testimony concerning juror deliberations and case law from states that allow testimony about conversations between jurors during deliberations. See Dumas, supra. Researchers believe this lack of understanding can be attributed to several problems including use of legalese, ambiguous language and awkward grammatical construction, just to name a few. See Marder, supra citing Robert F. Forston, Sense and Non-Sense: Jury Trial Communications, 1975 BYU L. Rev. 601, 617 (stating that jury studies have generally found that “legalese” hinders jurors’ efforts to understand instructions); Bernard S. Meyer & Maurice Rosenberg, Questions Juries Ask: Untapped Springs of Insight, 55 Judicature 105, 106-07 (1971) (examining questions submitted by juries and noting that they often arise from unfamiliar or abstract words) and Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306, 1328 (1979) (finding that jury instructions are not well understood and that “specific linguistic constructions may be at the root of at least some of the comprehension problems”).

Consider the following excerpt from a Massachusetts Institute of Technology-educated Ph. D., Arnold King, who served as a juror in a criminal case in March of 2006:

Although I thought I had understood the judge’s instructions as he was reading them, he offered to provide us with a written copy, and when we were given one copy there was sentiment that all of us should obtain copies, so that was done. We began our deliberations by going over the instructions, but any hopes that they would provide definitive guidance were unfounded.

In my view, the instructions…were almost impossible to sort out. I could imagine a lot of jurors simply giving up on interpreting the law and instead making a judgment based entirely on ‘gut feel.’ That is, rather than making a logical determination, a juror might say, “I feel like it was murder” or “I feel like it wasn’t murder.” In our case, I think we tried very hard to understand and follow the law. But we also honored our gut feelings, and I believe it was right to do so.

Arnold King, Law and Order, TCS Daily, Apr. 14, 2006, http://www.tcsdaily.com/article.aspx?id=041406C.

The problem of jury comprehension (or lack thereof) is not always recognized by lawyers or courts. In January of 2000, the Supreme Court of the United States decided the case of Weeks v. Angelone, 528 U.S. 225, 120 S. Ct. 727 (2000). The case dealt with the issue of whether a trial judge in a death penalty case was obliged to clear up jury confusion over a sentencing instruction. The majority opinion authored by the late Chief Justice Rehnquist stated that it can be presumed that jurors understand instructions given to them. Yet, this presumption seems to fly in the face of social science research by psychologists, sociologists and linguists. Apparently, under the Weeks decision, it is adequate for a trial judge to answer a jury’s question about the meaning of an instruction by simply re-reading the language of the original instruction. With this bleak prognosis on comprehension of jury instructions, what is a lawyer to do?

II. Sources of Instructions

There are many sources of jury instructions. Most states have published pattern jury instructions. Local pattern instructions are a great place to start, and some states even require that pattern instructions be used. State Supreme Court websites sometimes post form instructions as well. Perhaps the best resource is the work of your colleagues. They may have instructions previously given by the judge in your case or from another local judge. Previously given instructions can certainly be helpful in tailoring the instructions you want the judge in your case to give.

Sometimes there is no template instruction available for an issue. In these circumstances, there are two other places you can look for guidance in drafting an instruction: case law and statutes. Be sure that if you are modeling your instruction after case law that you are modeling the instruction based on the holding in the case, not dicta. If you are basing an instruction on a statute, it is tempting to simply quote the statute verbatim. Be forewarned, however, that this can lead to a very lengthy and confusing instruction. The material that follows will offer suggestions to solve this dilemma. Other sources for jury instructions include Lexis-Nexis, Westlaw and other legal research sites on the internet. Pattern jury instructions are merely diamonds in the rough. Following a few simple tips and tricks will help polish them up and turn them into clear and easy to understand instructions that will truly assist the trier of fact.

III. Considerations in Drafting User-Friendly Instructions

All good instructions are accurate, but not all accurate instructions are good. It goes without saying that it is important for the jury instructions you submit to the court to be accurate statements of law. Your instructions should always provide proper citation to authority so that the court and opposing counsel can verify your statements of law. Courts will refuse to give instructions which misstate the law. In addition, courts refuse to give instructions that are immaterial, improper under the facts of the case, erroneous, incomplete, repetitive, misleading, confusing, argumentative, conflict with other instructions or mischaracterize evidence. But the question remains: How do you go from accurate statements of law to an instruction a jury can understand? The answer is easier than you may think – simply write your jury instructions in plain English.

Research suggests that translating jury instructions into plain English improves jury comprehension. Perhaps not surprisingly, in many cases when instructions were re-written in plain English, juries also had less difficulty understanding them. See Marder, supra and Dumas, supra. Some studies say that comprehension can improve from fifty to sixty-five percent, all the way up to eighty percent once re-written. See Raymond Ward, Clear, Effective Jury Instructions, For the Defense, July 2004 citing Joseph Kimble, How to Mangle Court Rules and Jury Instructions, 8 Scribes J. Legal Writing 39 (2001-02). Other studies have concluded that comprehension of instructions increased as a function of exposure to instructions, and one study concluded that jurors who were given copies of the written instructions actually understood them better. See Marder, supra. But see, Heuer & Penrod, Instructing Jurors: A Field Experiment with Written and Preliminary Instructions, 13 Law & Human Behav. 409 (1989).

Saying that instructions should be written in plain English is easy enough, but actually doing it can be much more difficult. The evening news and hometown newspapers have mastered the concept. The same public who watches TV and reads the newspaper also serves on juries. Consider the following plain English tips for making your next set of jury instructions easier to understand.

A. The Art of Plain English Jury Instructions

The very first step after identifying the applicable pattern instructions applicable to your case should be to re-write them into plain English (unless you are in a state that requires pattern instructions to be used – and there are some that do). Some pattern instructions may be used without much modification, for example, instructions on credibility of witnesses. Other instructions may require significant modification before they are understandable. Read and consider each pattern instruction carefully and see how each can be modified to reflect a plain English statement.

Make your instructions conversational. Once you have written them, read them out loud. This is how a jury will hear them. If you feel as though you are droning on and on, with no end in sight, that is likely the way the jurors will feel as well. Also, in some jurisdictions, instructions are only read aloud and are not provided to the jurors on paper.

Convey one idea, topic or legal issue per instruction and avoid compound sentences. This breaks the law into bite-sized pieces for your jury, making concepts easier to understand and apply. Avoid double negatives. No one wants to not have a jury understand the law. See how confusing it can be? Similarly, write in the affirmative, not the negative. For example, “Plaintiff must prove negligence to recover,” rather than “If Plaintiff does not prove negligence, she cannot recover.”

There is no room in plain English for legalese or legal jargon, so avoid it at all available opportunities. Jurors do not understand most of it anyway and, as can be seen from the Weeks case, judges do not have to explain it to the jury. Additionally, you may not want the judge to explain it. Where use of a legal term cannot be avoided, define it within the instruction. Do not place a definition on a separate page forcing jurors to turn pages back and forth. Clearly defining legal terms when they are used will cut down on confusion in the deliberation room and keep the focus on your case – rather than how a particular legal term may have been used on an episode of NBC’s Law & Order.

Strive to always use active rather than passive voice in your instructions. For example, “Plaintiff has the burden of proof” rather than “the burden of proof is on the Plaintiff.” Using active voice will keep your sentences clearer and will keep them from becoming unnecessarily wordy and confusing.

Nothing will confuse a juror more quickly than instructions that refer to “Plaintiff’ and “Defendant.” Tailor your instructions to your case and use party names. In law school, most people learn that using “Plaintiff” rather than “Mr. Jones” is more persuasive because it depersonalizes him. Using these impersonal terms can quickly confuse a jury leaving them struggling to figure out which party is which. Do the work for them and eliminate the doubt. You certainly do not want the jury to find for the plaintiff thinking that the plaintiff is your client. To illustrate, consider Ian Frazier’s illustrative example with the infamous Wile E. Coyote and Acme Company in a products liability suit filed by Mr. Coyote against Acme for its allegedly defective rocket sled. See Ward, supra. The product liability law in such a case will likely refer to the manufacturer, the product and the Plaintiff. When it is time to put the law into a jury instruction, substitute Acme for the manufacturer, the rocket sled for the product, and Mr. Coyote for the plaintiff: “To prevail against Acme, Mr. Coyote must prove that the rocket sled was defective.”

Finally, put all of your instructions in a logical order and limit them to a reasonable number. Background and general instructions should come first including instructions on burden of proof, evidentiary standards, experts and credibility of witnesses. Once the jury has background instructions, move into the substantive law of your case and the elements for the causes of action. The next step is to provide instructions on any applicable defenses the defendant(s) may have and then instructions on damages. Conclude by incorporating a few instructions regarding deliberations so that all jurors understand how the deliberation process works.


B. Comparing Instructions: The Good, the Bad and the Ugly

By way of example, consider the following product liability jury instructions re-written in plain English. You may even find that the law becomes clearer to you after reading these.


Legal Version: Causation – Strict Products Liability If you decide that the product was defective or unreasonably dangerous, you must consider whether the product caused or enhanced Plaintiff’s injuries. To meet this burden, Plaintiff must only show that the greater likelihood or probability that the harm complained of was due to the defective nature of the product. Conduct of the Defendant is irrelevant to this inquiry. The only focus is on the product itself. The product must be a legal cause of Plaintiff’s injury. If the harm would have occurred anyway, then the Defendant is not liable. It does not matter whether other concurrent causes contributed to Plaintiff’s injuries, so long as you find the product contributed to the harmful result in a material or important way. That this contribution was not slight, insignificant or tangential to causing the harm.

Plain English Version:
If you find the lawnmower was defective, you must decide whether it caused or worsened Mr. A’s injuries. Mr. A must prove that it is more likely than not that the defective nature of the lawnmower, and not something else, caused his injuries. If you find that Mr. A would have been injured even if the lawnmower was not defective, ABC Manufacturing, Inc. is not responsible for Mr. A’s injuries.


Legal Version: Duty as to Product Design A manufacturer of a product has a duty to use ordinary care in the design of the product so that it will be reasonably safe for the use for which it is intended or which can reasonably be anticipated. In exercising this duty, ordinary care must be exercised by the manufacturer to design the product in such a way that the product is reasonably safe for the ordinary consumer who possesses knowledge common to the community as to the product’s characteristics. Failure to fulfill this duty constitutes negligence. You may consider evidence of an alternative design in your determination of this issue, but it is not required to prove a design defect. Likewise, the fact that a hazard is open and obvious or has been warned against are also factors to be considered in analyzing whether a product is defective or dangerous. If a product was at the time of manufacture in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product is not defective by reason of design or performance, unless the plaintiff proves that a reasonably prudent manufacturer, could and would have taken additional precautions to design the product so as to be reasonably safe for the ordinary consumer who possesses knowledge common to the community as to the product’s characteristics.

Plain English Version:
ABC Manufacturing must use ordinary care in designing its products so people who are using its products in the manner intended will not get hurt. You may consider warnings on the product or hazards that are obvious in determining if ABC Manufacturing took proper care in designing the highchair in this case. If you find that the highchair met industry standards, it is not defective unless Mrs. B proves a reasonable manufacturer could have and would have taken additional precautions.


Legal Version: Causation
As to the requirement that Plaintiff’s injury be caused by a Defendant’s conduct, I do not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage. You should resolve this question by deciding whether Plaintiff would probably not have suffered the claimed injuries in the absence of a Defendant’s conduct. If Plaintiff probably would have suffered those injuries regardless of what Defendant did, then you must conclude that the injuries were not caused by the Defendant. If, on the other hand, Plaintiff probably would not have suffered the claimed injuries in the absence of a Defendant’s conduct, then you must conclude that Defendant’s conduct did play a part in Plaintiff’s injury.

Plain English Version:
More than one thing can cause an injury. You must decide whether Mr. C would still have been hurt regardless of ABC Manufacturing, Inc.’s conduct. If you find that Mr. C would have been hurt anyway, ABC Manufacturing, Inc. did not cause Mr. C’s injury and cannot be held responsible. On the other hand, if you find that Mr. C would not have been hurt but for ABC’s conduct, then you should find in favor of Mr. C.

IV. Getting the Most Out of Your Instructions Throughout Your Case

One final thought: Jury instructions are usually one of the very last tasks to be completed before a case goes to trial. Writing your jury instructions early, however, can be beneficial. Written early, as discovery and depositions are just beginning, jury instructions can serve as your road map to guide you through your case (just as they will later guide the jury). You can use them to tailor discovery requests to the plaintiff or co-defendants, thus making sure you have gotten discovery on all relevant claims and defenses. You can use them as an outline for depositions to be taken in the case. You can even test comprehensibility of statements of law during the depositions of your lay witnesses. You can also use the instructions when drafting your client’s dispositive motion. The bulk of the law you will rely upon will already be laid out in your instructions and you can simply include this law in your motion and then apply your facts. A complete set of jury instructions, with your facts as an overlay, can also assist in developing a trial theme. Finally, if you have your instructions mostly complete before your trial begins, you can use excerpts from your instructions during voir dire to help empanel your jury. Start introducing your potential jurors to the law you are going to be asking them to apply as early as possible. Doing so can only help with comprehensibility in the end.

Laurie K. Miller is Of Counsel with Ellis & Winters, LLP in Raleigh, North Carolina. Her primary practice areas include products liability, drug and medical device litigation, medical professional liability, and commercial litigation. Ms. Miller has devoted a substantial portion of her practice to mass litigation, multi-district litigation and class actions. She is currently serving as the Second Vice-Chair of the Young Lawyers Committee.

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