May 1 is Law Day

Posted on May 1, 2012 04:35 by Matthew Cairns

I often find it curious that Law Day falls on May 1st.  Growing up, May 1st was always the day the news carried pictures of over the top parades in Red Square in Moscow where the USSR would display its missiles, goose stepping soldiers and mummified Politburo.  In hindsight, that seems quite antithetical to what I now celebrate on May 1st – the rule of law that sets our country apart from all others.  Being a lawyer should be and most often is a noble profession.  Incrementally, lawyers and judges shape the rules of conduct for society.  We protect the rights of individuals who are victims of crime.  We hold the government’s feet to the fire when it seeks to deprive a person of liberty.  We work to ensure that injured persons are fairly compensated when they prove their case to a jury of their peers.  We provide the vehicles for businesses to form, grow, prosper and provide jobs.  We protect assets at death so that heirs can enjoy the fruits of their loved ones’ hard work.  So on May 1, 2012, remember the great things lawyers and judges do for society and all of us, and not the punch lines of inane lawyer jokes. 

Matt is a partner with Gallagher, Callahan & Gartrell in Concord, New Hampshire.  He is the DRI Immediate Past President.  He also sits on the Board of Directors for the NFJE and LCJ.

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Need to Get Along

Posted on November 4, 2010 08:31 by Matthew Cairns

Can't we all just get along?  That question posed by Rodney King is something I have been thinking about this election week.  Matt Miller, Robert Reich and Mara Liasson brought this issue to us during their fabulous presentations at the DRI Annual Meeting in the context of American Politics.  Unless our political parties can find common ground, I fear two years of posturing and gridlock at a time when consensus is absolutely necessary for the United States to prosper at home and abroad.  The Civil Bar Roundtable hosted by ABOTA brings the leading national civil litigation organizations together to find ways that defense and plaintiff oriented organizations can come together on important civil justice issues such as adequate funding of the court system and the right to a jury trial.  Each of our law firms need to come together as teams to better address the needs of our clients as well as our employees-- internal competition among "partners" is not healthy and is not "getting along" for the benefit of your organization.

It is my goal that all of the different constituencies of DRI "get along" with the common goal of advancing civil justice, promoting the defense bar and providing our members and their clients with the best opportunities and value for their membership dollar and involvement.  Integration, cooperation, and collaboration will be key focuses for us this year.  DRI, FDCC, IADC and the ADTA are all working together on the important preemption issue and will be looking at the FASB 5 disclosure issue as well.  Our committees will be looking for ways to work together on publications and education.  Finally, we are continuing to provide opportunities to our members to get involved.  The more we are involved together, the better it will be for all of us.  Join us, get involved, get along and let's move forward for DRI and civil justice.

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Categories: DRI President

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President's Installation Remarks

Posted on October 25, 2010 04:10 by Matthew Cairns

When I met with the Nominating Committee in Washington DC in 2007, I emotionally told them that it was very humbling to be sitting before them.  Now 4 years later, I can say the same thing to you – it is very humbling to be standing here as DRI’s 49th President.  I have come a long way from Guilford Connecticut, and I thank everyone that has been there along the way for me.  Particularly:

  • • My Parents  – Bob and Nancy Cairns
  • • My Brother Andy and his fantastic wife Carol
  • • Tim Britain – my law partner of 22 years and my friend for longer than that
  • • My current law partners Mike Callahan and Charlie Bauer
  • • These folks aren’t here but I want to mention the attorneys and staff at Gallagher Callahan & Gartrell and Ransmeier & Spellman, particularly Mike Lenehan at R&S who asked me to finish his term as NH State Rep and set me on my leadership path; and Don Pfundstein at GCG who brought me on board in the midst of my officer track and with Charlie and Mike has supported me every day.
  • • The Presidents of DRI who have gone before me
  • • The Officers of our sister organizations:
    • • Tom and Ann Cordell  and Jan and Mike Neil of the FDCC
    • • Frankie and Martha Colon, and George and Carolyn Walker of the ADTA
    • • Joe and Mary Pat Ryan, and Bill and Jane Perry of the IADC
  • • Chuck Stewart and the Annual Meeting Steering Committee
  • • The Tri- State Defense Lawyers and Northeast Region
  • • The tireless DRI Board, Committee leaders and our DRI staff
  • • And most importantly my oh so patient wife Tracey, and our superstar daughters Beth and Maddie who put up with my daily foibles, my absences and my constant gushing about DRI and my DRI friends…without them, I would be nothing.

We are wrapping up DRI’s 50th Anniversary year. Since I became a DRI member

  • • laptops and blackberries are indispensible tools
  • • our country was attacked on 9/11
  • • We have undertaken the best judicial education program  in the country (NFJE)
  • • DRI has grown to 22,000 members at home and abroad; and
  • • The Red Sox finally won not 1 but 2 World Series titles.

So what do we have to look forward to in the next 50 years? That horizon is too far. Instead, what I want to do is look forward 10 years to DRI 2020

Beginning last year, under Cary Hiltgen’s leadership, DRI’s Executive Committee began taking a fresh look at our core principals. We brought back an annual officer’s retreat where we examined how DRI was meeting the pillars of Education, Balance, Justice, Economics, Professionalism and Service. We identified dead and dying ideas and sent them to their final resting place, and began focusing on the value proposition that is DRI and DRI membership.

This is going to be a year of strategic planning top to bottom at DRI, with the constant measuring point: how will doing x or not doing y create value for DRI as an institution and DRI members. The value may come in different forms:

  • • Drawing more members to the organization
  • • More timely and cutting edge legal education
  • • Exciting and new ways to deliver education to our members
  • • An increased international effort building on our experience in Europe and providing more opportunities for integration with our Sister Organizations and their international members, and our European, Canadian and other international members
  • • Strategic partnerships with companies such as West Publishing
  • • A bigger public voice as Thought Leaders on the civil justice issues that matter most to our clients and members through:
    • • Media commentary
    • • Publications
    • • Amicus briefing at our highest courts
  • • Technological advancements in our website and DRI Today

The challenges that face our legal system today can be a source of cynical dismay or a new and vital resolve. Given the skill, talent and wisdom of our members, it is particularly important that we contribute our best to just solutions. The world will be changing at break neck speed, and DRI will be working hard to be at or even ahead of the leading edge of that change in the legal and civil justice space. Your Officers and Board of Directors will be exploring what DRI 2020 can look like and how to get there. Your committees will be asked for input and so will our individual members. It will be an organic process but one founded on our core principles that we will not lose sight of as Henry, Mary and Mike follow me in the position of President, and new Leaders rise up in DRI. I can’t do this alone, the Board can’t do it alone, the officers can’t do it alone – we all have to work together to make DRI be all that it can be.

Turning back to DRI’s core principles:

  • • Education makes us better lawyers
  • • Balance and Justice are what we all strive for in our legal system and society in general
  • • Economics lets us support our families and employees
  • • Professionalism has us serving a cause greater than ourselves

But without Service, none of these can happen. I thank Chuck, Marc and Cary, and everyone here and across the DRI World for their service to DRI, to our justice system, to our colleagues, to our families and to society. It truly is DR-We, not DR-I. And most of all, I thank everyone here for my opportunity to serve as your president for the next year.

 

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New Jersey Law Journal
28 June 2010

The civil defense bar is engaged in a much-needed effort to clarify and reform federal civil procedure rules so we can return to a time when cases got resolved based on merit, not because the cost of trial was too onerous.

While the Defense Research Institute and its partners have been seeking civil justice and procedure reform at the federal level, most recently with their submission of a comprehensive White Paper to the 2010 Conference on Civil Litigation at Duke Law School, the same rationales can be applied in New Jersey and other states.

New Jersey's judicial vision, as outlined on the courts' website, is to "provide equal access to a fair and effective system of justice for all without excess cost, inconvenience, or delay." The goal, according to the mission statement on the website, is to achieve "fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State."

This is no different from the federal judiciary's goal, outlined in Federal Rule of Civil Procedure 1, that civil rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."

Unfortunately, since the promulgation of the federal rules in 1938, problems in pleading standards and discovery manipulation have become systemic. Protracted and expensive discovery battles, caused by an extremely liberal discovery language coupled with pleading standards that fail to focus the issues for trial, have turned our civil justice system into something litigants seek to avoid, rather than embrace.

Two remedial steps are necessary.

The first step is reform of initial pleading requirements. Barebones "notice pleading" needs to end. Plaintiffs' counsel cry that anything but notice pleading will close the courts to many deserving plaintiffs who should be allowed in to conduct discovery to then determine whether their claim should survive. However, requiring a statement of facts showing a plausible right to recovery, the Twombly/Iqbal standard, would promote rather than deny justice. (Unlike Federal Rule 8, New Jersey Court Rule 4:5-2 requires a "statement of the facts on which the claim is based, showing that the pleader is entitled to relief" as part of the initial complaint.)

By permitting barebones notice complaints, courts have moved away from their core purpose of evaluating and adjudicating known or cognizable claims. Furthermore, because there is no clear guidance in the federal rules on what the "short plain statement of the claim showing that the pleader is entitled to relief" requirement of Rule 8 means, litigants are left to the often inconsistent and case-specific interpretations of federal district courts.

Uniformity and predictability are hallmarks of efficiency. Under the current schema for initial pleadings, neither exists and thus Rule 8 does not advance the overall goal of "just, speedy, and inexpensive determination" of matters.

The second step, discovery reform, is needed because of the problems with notice pleading and economic warfare waged in the courts. Notice pleading allows virtually all cases to reach discovery, and, as a result, burdensome and expensive discovery is almost certain to occur. While federal district courts have the power to manage discovery under Rule 26, for the most part discovery is attorney-managed or mismanaged. District courts often lack the knowledge about the strength or weakness of a claim and are institutionally ill-suited to end abusive litigation practices.

That is why these problems have not been corrected. No longer is discovery simply designed to find additional information to support the known factual bases for a claim or explore a party's defenses. Instead, it has become a way to find the initial support for a case and, equally often, an abusive bludgeon used to create economic, as opposed to merit-based, incentives to resolve cases.

In fact, the cost of discovery often results in settlement payments disproportionate to the merits or liability risks. The scope of discovery needs to be narrowed to nonprivileged matter that would support proof of a claim or a defense. Further, the discovery needs to be proportional under Rule 26(b)(2)C), that is to say not duplicative or cumulative. The likely benefits of discovery should outweigh the burden on the producing party. Finally, electronic discovery needs to be narrowed and better managed to help reduce devastating costs borne by producing parties.

We need to embrace a system that opens the door to plausible cases, but bars the door to speculative or merely possible cases. We also need to embrace a system that minimizes cost-benefit analysis on whether to bring or defend a case. These proposed reforms would light the way to a more efficient, economic and just civil litigation system.

Cairns is president-elect of the Defense Research Institute and a partner with Gallagher Callahan & Gartrell in Concord, N.H.

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Categories: Civil Justice System

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