Service - An Honor An Obligation

Posted on May 2, 2011 02:44 by R. Matthew Cairns


May 2, 2011 in Washington DC is an exciting day.  Not because the Lawyers for Civil Justice is holding a Board and membership meeting where important work is being done on Federal Civil Rules reform, state E-Discovery analysis and other matters affecting civil litigation.  No, it is obviously because of the end of Bin Laden.  The celebrations last night, witnessed by millions around the world, happened a block from my hotel.  Unfortunately, I slept through the whole event, including 2 texts from my daughter asking me if I was awake.  Many of the lawyers here at the LCJ meeting got out of bed and went down to join the throngs and experience the moment.  It clearly was a moment people will remember forever, hopefully not so much because someone was killed, but rather that it has closed an agonizing chapter in American history.  What I will remember most, however, is walking through the Vietnam Memorial this morning and how I felt about the team that finally resolved the Bin Laden issue – I am thankful that we have dedicated men and women in our armed forces that will put themselves in harm’s way for people they don’t know and may never meet.  I am also thankful for our teachers, first responders, judges, and clergy – another class of people that give of themselves for all of us.  The US Constitution gives us all protections and allows all of us to serve.  I urge all of us to honor the Constitution and take up the banner of service, be it in DRI, your firm, your community, your synagogue, or your school.   God Bless America.


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The United States does not have a monopoly on excellence, despite what some zealous "patriots" might think.  No, I am not an "America Hater".  Rather, I am being reminded of this fact as I am attending the 2010 DRI Europe Conference on Emerging Sources of Criminal Liability Across Europe for Corporations and Their Directors and Officers.

DRI has long been the gold standard for legal education in the United States.  Our substantive seminars, annual meeting and webcasts regularly present cutting edge topics to our members.  In short, we are the envy of the U.S. legal world!  (Ok, I am a zealous DRI Patriot)  Sitting here at my second European DRI program, it is clear to me that DRI can and should be the envy of European legal education.  Our DRI Europe colleagues have marshaled an impressive list of speakers on a topic that is as relevant in Europe as it is in the United States.  The same went for last year’s program on Privacy.  DRI Europe truly is "Defending Business" and educating their counsel.

We are committed to building on this educational excellence in Europe by providing more integration and opportunities for our European colleagues in DRI.  Be on the lookout for more international legal articles and alerts, comparative law articles and cross border topics at appropriate DRI seminars in the coming years.  DRI is as committed to developing future legal leaders in Europe as it is in the United States, and the enthusiastic Young Lawyers model is working well over here and will certainly turn out future DRI Europe leaders, as well as IADC and FDCC members.

If you have contacts, partners, associates and clients in Europe who are not members of DRI Europe, encourage them to join and become part of the DRI Family.  Your officers are all standing by to help you, and by extension help increase the relevance of DRI internationally.

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As litigation attorneys, we often are focused on getting the next file or working up our existing cases as they move forward to trial or mediation. We sometimes forget an important variable that controls how our clients will be served by the court system and how our cases will move through the system – legislative action.

Here in New Hampshire, like across the country, our legislature is hard at work on a variety of bills. An aggressive effort to skew the civil justice system by certain legislators that made their fortunes and careers as plaintiff’s lawyers has been underway. I suspect that other states are facing similar onslaughts, either by plaintiff legislators or legislators that are beholden to the AAJ for their election or re-election. Additionally, civil justice is under attack because economic times are forcing cutbacks in all branches of government including the judiciary.

As defense lawyers, we have an obligation to our profession and our clients to try to keep the playing field level. This week I have had the privilege of testifying before the House Judiciary Committee and House Finance Committee. Before the Judiciary Committee, I attempted to educate the members that a bill that could eliminate worker’s compensation liens in third party actions would have the end result of raising compensation premiums and harm small businesses. Before Finance, I spoke in support of the Chief Justice’s budget request and against consolidation of District Courts, our first tier courts, and elimination of judicial commissions and boards. In an earlier posting to this Blog, I described testifying before the Advisory Committee on Civil Rules on proposed changes to Federal Rules 26 and 56.

Most of our State and Local Defense Organizations have legislative tracking in place and some even have paid lobbyists on staff. Others rely on individual lawyer members to contact legislators and testify when needed. At DRI we are part of the Lawyers for Civil Justice, which allows DRI to join forces with our sister organizations the IADC and FDCC, and other like-minded law firms, corporations and organizations to lobby congress on matters of civil justice fairness, and to bring that expertise to the state level where appropriate. DRI, with the outstanding help of our Young Lawyers Committee, is tracking legislation in each state and you can find weekly reports in The Voice. Finally, through DRI’s support of the National Foundation of Judicial Excellence we are providing the best and most balanced education for our state appellate judges on cutting edge civil justice and litigation issues.

I encourage all defense lawyers to pay attention to what is happening in your legislatures and find opportunities to advance the cause of civil justice at your local level, outside the courtroom. Volunteer to speak with legislators or legislative staff who are drafting bills on civil justice issues or issues particular to your practice area. Provide copies of the DRI Whitepaper on Jury Service or the state of the judiciary to your courts and legislators and press. Personally, through your firms and through your SLDOs financially support the NFJE. And finally, remain engaged, because without the support of the entire defense community – lawyers, organizations, and clients – the playing field will not remain level and as a result not just our clients, but also society will suffer.

R. Matthew Cairns
Gallagher Callahan & Gartrell


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I just returned from the DRI Young Lawyers Committee leadership meeting in Chicago, and I have to say that DRI and defense bar appear to be in good hands looking towards the future. Nowadays, there are articles about law school graduates and young attorneys expecting to be coddled as they enter the work force, after all, they are the generation where everyone got a trophy. That is not the case with the 40 young attorneys I spent the afternoon with.

The meeting presented reports from 21 different initiatives and subcommittees ranging from the committee's annual seminar to a Supreme Court committee that organizes a swearing in ceremony at the Supreme Court of the United States to Diversity efforts to Women Attorney mentoring. The leadership is diverse, welcoming and definitely hard working.

These young attorneys and the thousands of other members of the Committee are the future of the defense bar. Many will go "in-house" and become General Counsel. Some will become judges and most will become successful private practitioners. In large part, they will be successful because of the skills they develop in their practices, the education and training they get from DRI programming, and the relationships they build through this committee and, as they call it "Big DRI."

Young lawyers that are starting out need a home outside their firms. The DRI Young Lawyers Committee is a big house with many rooms. Join, get involved -- from what I saw, you won't regret it.

R. Mattthew Cairns
Gallagher Callahan & Gartrell

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The Advisory Committee on Civil Rules is currently holding hearings across the country on proposed amendments to Federal Rules of Civil Procedure 26 and 56.  See link.  A hearing was held on November 17, 2008 in Washington, DC.  Future hearings are set for San Antonio on January 14, 2009 and San Francisco on February 2, 2009.  The proposed amendments and the Advisory Committee’s comments can be found here.

It is important for those interested in civil justice to become familiar with the proposed amendments as they seek to revise 2 very important rules relied upon by federal court attorneys – Expert Disclosure and Summary Judgment.  While many sections are being changed, the following stand out for me:

Rule 56(c) will be changed to require a point/counterpoint recitation of material facts.  This is not new to me because for many years the District of New Hampshire has required a movants to submit separate statement of material facts, and the opposing party to specifically lay out those material facts that are disputed.  Local Rule 7.2(b).  The requirement of setting the facts out in separately numbered paragraphs is new for me but not problematic.  It has been my experience that the requirement has forced movants and opponents to focus on that which is truly material, i.e. facts that affect the outcome of the litigation under the applicable substantive law, rather than simply asserting a long litany of facts in an effort to either persuade the court of the merits of your overall position without regard to the issues at hand or throwing numerous facts against the wall in the hope that the court will assume that there must be an issue in there somewhere and deny the motion.  I believe that it has also focused the court’s attention and permitted it the luxury of not having to decipher what a party thinks is material or in dispute.  This latter point is particularly important in cases where there are pro se litigants, such as civil rights matters where my judges have expressed great frustration in matters I have been involved in.  Therefore, when I spoke to the Committee in DC, I encouraged the adoption of that requirement in the proposed rule.

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