I often thought about myself or my law firm when it came to attending networking events.  After attending my fourth Young Lawyers Seminar last week in Denver, I realized that there is much more to networking and socializing than the obvious benefit of establishing relationships that will one day generate business. 

In the past year or so, I found myself in a position to refer several pharmaceutical defense cases to local counsel around the country: one in Virginia; one in Oregon; others here and there.  I immediately went to the DRI member directory to find DRI members who practice in those jurisdictions.  I also asked my fellow Young Lawyers Committee members who they knew in certain jurisdictions.  I came away with several referrals, and was able to place the matters after clearing conflicts checks.  Simple enough, right?  There’s more.

In Denver this past week, I saw one of the Young Lawyers who was able to accept one of these referrals.  She’s doing a phenomenal job representing our client.  This was my lightbulb moment.  Networking and building referral sources isn’t always about our own book of business; it’s about being part of an organization that fosters skill, experience, and professionalism.  It’s about being part of an organization in which our clients are benefitted by our contacts and friendships.  Our clients reap the rewards by being referred to the best defense attorneys and law firms in the world.  So the next time you approach a networking opportunity, consider all that your clients can benefit by your membership in DRI.  They will thank you.

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In his recent article in City-Journal, Northwestern University Law Professor John McGinnis hypothesizes that recent and impressive technological advances will have an increasingly disruptive impact on the legal profession.  McGinnis notes that “law schools are in crisis,” “solo practitioners have been hurting for a decade,” “attorney job growth has been flat,” and “the going rate for associates, even at the best firms, has stagnated since 2007.”  Though the economic downturn has certainly played a part in the current state of the legal industry, the advances in information technology will be the determining factor in the future.  McGinnis predicts that “five key areas of law now face encroachment by this machine intelligence.”  

The first, e-discovery, is already well on its way to changing (and limiting) opportunities for some lawyers.  Most notably, junior litigation associates used to be profit centers for big firms by spending late nights and weekends on hefty document review projects.  With predictive coding, the speed and accuracy of this work is improved and the need for bodies in the office is decreasing.  

The second key area is legal research, which as McGinnis notes, has largely “depended on typing in the right specific keywords.”  As computer technology improves, machine intelligence will be able to recognize concepts rather than just words with the result being more efficient research limiting lawyers’ “traditionally enjoyed leverage over the laity.”

McGinnis’ third area, legal forms, is already replacing many of the tasks traditionally performed by solo practitioners and small firms: trusts, estates, basic corporate documents, etc.  Businesses like Legal Zoom and Kiiac specialize in drafting estate documents and contracts, while “Nevada’s secretary of state has pioneered online registration for small businesses, which can comply with regulations by following the steps of simple computer programs.”  

McGinnis also predicts computers may one-day play a stronger role in a fourth traditional lawyer task: drafting briefs and memos in simple litigation.  Though McGinnis notes “an experienced lawyer could easily shape a computer generated draft into a more polished product” there’s no denying that “once programs start being useful, they get more effective over time.”  Ultimately, computers may be playing the role of entry-level associate in some cases.  

Finally, McGinnis hypothesizes that computers will bring “moneyball” to law.  The term “moneyball”, made famous by Michael Lewis’ bestselling book about the change in baseball statistics and analytics, generally refers to a method of predicting results based on raw data and statistics.  For lawyers, the use of “moneyball” in the law means that computers predict a client’s chance of success in litigation, as opposed to a lawyer’s hunch or gut feeling. To some extent, legal moneyball is already in place.  Legal support companies already track numerous statistics about potential jurors and past jury verdicts in forums across the country. The question is, how much progress can be made using legal moneyball?

Right or wrong, McGinnis raises some interesting points about the changing role of computers and technology in the law.  In a world where lawyers are constantly competing with each other for the next case and the next deal, perhaps the most successful lawyers will be those that are prepared to compete with and for the best legal technology.  Indeed, as MIT’s Eric Brynjolfsson and Andrew McAfee have advised in their recent book Race Against the Machine, “The key to winning the race is not to compete against machines, but to compete with machines.”

You can read the entirety of McGinnis’ article here. 

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DRI Online Communities

Posted on May 22, 2014 02:28 by Admin

On May 21, DRI rolled out the new committee online communities.  The new communities will enhance DRI’s web presence and will allow committee members to connect with each other and share information more easily.  Each community will have a discussion list, which will replace the current list serve, as well as a document library, blog, and calendar.  Committees will also be able to post announcements about their seminars and publications, and promote open positions and volunteer opportunities.  All posts are sent to members as a daily digest from the communities, unless a member changes his or her settings to real-time delivery.   The communities are designed to be the hub for all committee activity. 

There are six substantive law committees serving as the pilot group: Commercial Litigation, Employment and Labor Law, Product Liability, Women in the Law, Workers’ Compensation, and Young Lawyers.  Additional committee communities will go live over the course of the year.

Members can access the communities through the DRI website, www.dri.org  (there is a new link in the top blue navigation bar).  Committee members are automatically members of the respective community and are being notified via email. Members should call (312) 695-6221 if they are having trouble logging in to the site.


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A hot button concern of DRI members and clients today is how to minimize exposure to the federal government under the Medicare Secondary Payer Act (the “MSP”) for reimbursement obligations.  42 U.S.C. § 1395y(b)(2).  MSP reimbursement obligations may include conditional payment reimbursement and/or funding for a claimant’s injury-related future medicals.  Internal protocols for addressing MSP reimbursement likely vary from client to client as everyone’s tolerance for risk differs to a certain extent. Recently, an innovative funding protocol has gained traction and is being utilized by those who seek absolute means to extinguish all MSP reimbursement exposure under the MSP. By combining Medicare Set-Aside (“MSA”) analysis with funding settlement proceeds into an Internal Revenue Code §468B Qualified Settlement Fund (“QSF”), all MSP reimbursement exposure can be extinguished in full.

The MSA analysis concept is well-documented. Under the MSP, parties have an obligation to determine if the federal government has a right to not pay certain future medical expenses and then ensure that it does not pay a claimant’s medical expenses prematurely. 42 U.S.C. § 1395y(b)(2)(A)(ii).  As the Centers for Medicare & Medicaid Services (“CMS”) continues with the official rulemaking process, many seek shelter by addressing the MSA issue proactively prior to resolving a workers’ compensation, automobile, liability insurance (including self-insurance) or no-fault claim. Conducting MSA analysis and adding documentation to the file evidences your MSA compliance efforts. This alone, however, might not be enough, depending on your statutory interpretation with respect to future medicals under the MSP. 42 U.S.C. § 1395y(b)(2)(B)(ii).

To completely shield your client from MSP reimbursement exposure (past and future medicals), you may consider funding a QSF as part of the settlement disbursement process. The benefits of a 468B Settlement Fund to the client are: (1) to disengage from the litigation; and (2) qualify for economic performance to obtain a current income tax deduction. When utilized, payment is made by the client in exchange for a release from the present claimant(s) and possible future claimants. Once payment has been made to the 468B, the litigation process ceases for the client, thereby reducing legal costs and freeing up the resources being used in such litigation.

Further, it allows the client to deduct their payment (to the 468B) to the same extent as if the client paid the plaintiffs directly or paid into some other irrevocable and unconditional fund established to receive payments for the benefit of the claimants, thereby permitting a current income tax deduction if available. 

The client is completely released from present and future claimants despite the cause of action remaining alive to permit the Court to maintain its jurisdiction over the case. This is accomplished by transferring tort liability to the 468B through a novation, which has the added effect of adding a new party as substitute obligor who was not a party to the action (such as the administrator), and discharging the original defendants by agreement of all the parties, completely extinguishing any alleged liability of the defendants.  See Restatement (Second) of Contracts, Section 280 (1981).

Creation of Qualified Settlement Funds

Congress created 468B Settlement Funds under IRC §468B. The Treasury Department further defined these settlement funds by promulgating regulations that created the qualified settlement fund relating to Treas. Reg. §1.468B, which became effective on January 1, 1993. The relevant Treasury regulation, Treas. Reg. §1.468B-1(c), only lists three requirements to create 468Bs:

“A fund, account, or trust satisfies the requirements of this paragraph (c) if --

1. It is established pursuant to an order of, or be approved by, the United States, any state (including the District of Columbia), territory, possession, or political subdivision thereof, or any agency or instrumentality (including a court of law) of any of the foregoing and is subject to the continuing jurisdiction of that governmental authority;

2. It is established to resolve or satisfy one or more contested or uncontested claims that have resulted or may result from an event (or related series of events) that has occurred and that has given rise to at least one claim asserting liability –

(i) Under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (hereinafter referred to as CERCLA), as amended, 42 U.S.C. 9601 et seq.; or

(ii) Arising out of a tort, breach of contract, or violation of law, or

(iii) Designated by the Commissioner in a revenue ruling or revenue procedure; and

3. The fund, account, or trust is a trust under applicable state law, or its assets are otherwise segregated from other assets of the transferor (and related parties).”

A Safe Harbor From the Storm

MSP reimbursement concerns often delay the settlement continuum today.  Clients who wish to close a file and ensure it remains closed never really procure that level of comfort given current regulatory uncertainties.  Until CMS promulgates final, binding regulations in this area, utilizing tools which, by operation of law, extinguish MSP reimbursement exposure makes sense.  To that end, a QSF offers the following benefits when utilized:

1) Ensures compliance with all settlement terms while protecting proceeds in the interim;

2) Provides a current income tax deduction, as available, to the client in exchange for the release of the settlement monies to the QSF and its fund administrator; and

3) Allows the client to disengage from the litigation, thereby transferring all tort liability (including that arising under the MSP) to the QSF through a novation.  This also has the added benefit of adding a new party as substitute obligor who was not a party to the action (i.e., the administrator), and discharging the original defendants by agreement of all the parties, completely extinguishing any alleged liability of the defendants.

Conclusion

MSP reimbursement concerns cost our clients time and money.  Regulatory uncertainty in the MSP context creates unnecessary anxiety.  Solutions currently exist which, when utilized properly, can save our clients time, money and anxiety.  By combining MSA analysis with QSF funding as part of resolving a claim, the client gets the best of everything and you (likely) will get a repeat client seeking the same solution on future claims.


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A Word from DRI's Membership Committee

Posted on January 31, 2013 01:58 by Jennifer Muse

Welcome!  I have been a member of DRI since 2007.  A partner at a former law firm suggested that I join DRI to develop my practice.  At the first conference I attended (Insurance Coverage and Claims Institute), he introduced me to friends he had made over the years and encouraged me to get involved.  Little did I know six years later, I would be a DRI success story and that DRI would ask me and my new friend, Steve Crislip (a member since 1982), to help get the word out about the benefits of a DRI membership through a Membership Blog.  

On a bi-weekly basis (every other Thursday), DRI and its Membership Committee will use the DRI Blog to provide you with information about the benefits of a DRI membership.  We will provide answers to some of the most often asked questions and help you navigate the waters so that you can get what you want out of your DRI membership.  We will provide you with useful information about the various substantive law committees (i.e., upcoming seminars, the structure of the committee and ideas for how to get involved).  We will highlight some of the best features of a DRI Membership including DRI On-Line, DRI Today, For the Defense, In-House Defense Quarterly, the DRI Member Directory and DRI’s Expert Witness Database.  We will provide you with instructions and ideas on how to update your DRI profile in the DRI Member Directory to make it work for you.  We will also use the blog to shine a spotlight on some of the members who have helped make DRI the organization it is today and let them tell you their success stories and how DRI has helped them in their careers.  

We don’t want the blog to just be about what DRI has to offer.  We want (need) to hear from you.  Ask us your questions.  Let us know how DRI can improve your membership experience so that we can make DRI work for you.    

With that said, DRI and the Membership Committee would like to officially welcome you to its Membership Blog.  We look forwarding to sharing our knowledge and hearing from you!

Jennifer Muse
Anderson McPharlin & Conners LLP
Los Angeles, CA 
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According to this infographic from the Wall Street Journal,  “lawyer gluts” and the “dismal state of today’s job market”, a deeper examination of the actual numbers in this piece (completely unverified at the time of this blog's publication, I might add) could equally support the conclusion that the legal market is simply changing – breaking fee from its traditional trappings -- rather than drying up altogether.  This generation of law graduates need not focus on the adversity created by a lack of large to medium size firm openings, but take note of the numerous ways these same numbers identify other employment options and encourage you to make yourself marketable to the very outside forces that are allegedly squeezing the big/medium law firm jobs out. 

Globalization making an impact?  Go learn a second or third language targeting those exploding European/Asian/Middle Eastern markets.  Alternative legal service providers making a dent in the workload at large firms?  Make sure you seek out and target those service providers, as they need guess what as their business platforms expand?  That’s right, lawyers.  Trends suggesting boutique firms are the flavor of the day?  Narrow in through your extra-curricular activities in school on a practice area that interests you and supports a boutique practice, and then actively target those firms.  Don’t let these headlines discourage you – they are intended to be dramatic and attention-grabbing, just as with any other piece of journalism in today’s age.  These numbers aren’t a doomsday forecast – but they should be an encouragement to lay out your job strategy early, and to be flexible in your searches.  This “adversity” only primes you to become stronger lawyers/marketers/business-people. 

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I came across a post on the Lawyerist on the question whether good legal writing is inherited or developed.  Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.

There are actually three steps.  The first is to realize your legal writing needs help and care enough to try to improve it.  There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs.   Don't be that lawyer.  Take pride in your product.  The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven't figured out how to navigate away from this page.

The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice.  It's ironic that I spent several (ok 6, but who's counting) years getting a degree in Literature-Writing from a really solid university, but it wasn't until I was a staff member on Law Review that I truly began to understand the importance of active voice.  If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I'll provide a very easy example to illustrate the difference.  Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant.  Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.

See? Simplest thing in the world.  But, even those of us who generally strive to use active voice occasionally fall into passive voice.  The key is to recognize when you're doing it and decide whether the sentence you've created could be improved by changing the voice.

The second way to immediately improve your legal writing is equally simple.  Pare back the number of words you use to say what you're trying to say.  This was something my mentor taught me when I was a baby lawyer and I've generally tried to adhere to the principle, at least when writing to a court or opposing counsel.  Basically, every word in any sentence should be necessary.  Nothing extraneous.  This will automatically take care of the tendency to include "herein" and other pointless words.  It also forces the writer, you, to think about what you're trying to say and how to say it in the clearest way possible.  Judges and clerks appreciate clarity.

Now.  This second "way to immediately improve your legal writing" is not a rule.  It's just an approach.  And, it's an approach I freely disregard when I want to emphasize something through repetition or diction (word choice).  Hell, I often write entire paragraphs in the passive voice  and include a lot of extra words.  But, when I do it, I do it purposely, usually for effect.  Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.*  (*Ok, I'll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia.  I know that writers who know what they're talking about, as opposed to armchair poseurs (who me?), have zero tolerance latin phrases.  If I give in to the urge to use them in an early draft, I almost always delete them.)

There.  If you struggle with your legal writing, try these two suggestions.  I guarantee you'll see results.

(As originally posted at http://atcounseltable.wordpress.com/2012/07/02/two-sure-fire-ways-to-immediately-improve-your-legal-writing/)

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We've all been there, wondering when we'll get "our shot" – perhaps a high-profile role at trial, taking an important expert deposition, or simply face time with the firm's largest client. And, despite the insecurities that naturally accompany the rigors of a demanding job, most of us are probably less concerned about our capability for handling high-level responsibilities as we are about simply getting opportunities to develop the skills they require.

While there is obviously no single path to skills-development, effective leadership, and internal promotion, one important and often overlooked opportunity for a young lawyer to advance his or her career is by mastering the role of local counsel. In fact, as anyone who regularly serves as or manages local counsel in large national litigation will tell you – good local counsel is critical for the defense. Good local counsel not only gets work done, but adds insight and perspective to the litigation, and value to the defense team.

This article is just a starting point. But the best practices offered below – framed under six objectives, to provide context – should take you a long way toward demonstrating to law firms and clients around the country that your firm has the capable and dependable people they need as local counsel for their matters.

Objective #1: Be Helpful

The beginning of any local counsel work – often occurring at or near the time a lawsuit is filed in your home jurisdiction – provides an immediate opportunity to help national counsel with the case. Without being asked, provide information to national counsel about the venue, judge, opposing counsel, jury pool, deadlines, and any important local rules governing the initial pleadings. Some of this information can be obtained quickly by sending a short email to the attorneys in your office. You can also be helpful by sending national counsel copies of example pleadings or motions that may be relevant, and by offering to complete and file the necessary paperwork for national counsel to be admitted pro hac vice.

As the case progresses, continue to anticipate the needs of national counsel, and consider that national counsel may be busy with multiple cases and deadlines across many jurisdictions. Clearly label your emails to remind them of the specific case and topic for discussion. Responding quickly to emails and completing assignments early is crucial. Important briefs, correspondence, discovery, etc., will often need to be reviewed by several layers of lawyers from national counsel on up to the client. This inevitably takes time, and an important brief received by national counsel the day before it is due will surely frustrate them.

Objective #2: Determine Your Role

Not every local counsel role is the same. It can range from signing the initial pleadings to first chair trial counsel. Usually, local counsel's role is somewhere in between. Depending on the client, there may even be written guidelines and expectations for local counsel. Be sure to request any such guidelines as early as possible. Absent formal guidelines, however, the role and responsibilities of local counsel may be driven by such factors as the busyness of the litigation, personalities involved, and specific skills of the lawyers, to name a few. With this in mind, local counsel should (1) work quickly to determine his/her role; (2) stay within the confines of that role; and (3) be ready for that role to change. Flexibility is key, as is a proper respect for the relationship between national counsel and the client. Local counsel work should not be used as a platform to establish one's own business connection with the client. You will gain respect from all members of the defense team when you perform your role well. And when in doubt concerning your role, just remember the first objective: be helpful.

Objective #3: Be Proactive (within reason)

This objective goes hand-in-hand with determining one's role. Once you know your role, make sure you do not get lazy. Monitor the docket and let national counsel know right away about any filings. Send reminders when deadlines are near. Provide regular updates, even when there is seemingly nothing new to report. (The lack of developments in a case can nonetheless be significant. And, at least everyone will know you are on top of things.) As early as possible, ask national counsel for educational materials concerning the subject of the litigation that they think would be helpful for the performance of your responsibilities. Anticipate the needs for depositions or hearings, such as reserving conference rooms and court reporters, and recommending food, lodging, and transportation. Of course, you should not "overwork" the case. But a proactive approach to your representation will instill confidence in you and your firm, and increase your value to the team.

Also, just one quick piece of advice: draft your updates with the client in mind. You likely will be expected to report to national counsel on updates in the case, who then has the discretion to determine whether or not the information needs the client's attention. Draft your email so that it can be cut and pasted into a new email by national counsel, or simply forwarded to the client. This is helpful to national counsel, and can provide an opportunity for national counsel to commend your good work.

Objective #4: Give Advice

You can add great value to the defense team by being more than a taskmaster. Local counsel is often hired for their judgment and perspective on issues, in addition to the tasks necessitated by the location of the case filing. Do not shy away from giving an informed opinion, especially when asked. Whether working directly for a client, firm partner, or outside law firm, providing advice is a necessary part of our job. Think carefully, articulate your thoughts, and give your advice. Experienced lawyers know this is difficult, and will appreciate your input.

Objective #5: Build Relationships

One of the benefits of serving as local counsel is that you can be introduced to new clients, other law firms, and experts. Try to take advantage of these opportunities to build relationships. These connections will make you and your firm more valuable for future work, in any capacity.

Objective #6: Remember the Ethical Rules

Do not forget that you could be held responsible for the decisions of national counsel, depending on how they are carried out. Although you are acting under the direction of another person, you are still bound by the rules of professional conduct. (See Model Rule of Professional Conduct ["MRPC"] 5.2(a)). Similarly, a lawyer should not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (See MRPC 5.5(a)).

And do not forget Civil Rule 11, under which your signature certifies that you read the document, believe there is good ground to support it, and that it is not meant to harass or delay. Rule 11 can be particularly troublesome for local counsel when national counsel provides documents just before they need to be filed, and expects local counsel to simply sign and file them. You should carefully review documents before they are filed, and work respectfully with national counsel to ensure there is time to do so. While the implications of these ethical rules are beyond the scope of this article, they are nonetheless offered for consideration.

In short, be helpful, be proactive, stay within the confines of your role, and be careful. For the young lawyer who takes advantage of such opportunities, serving as local counsel can be a very rewarding experience.

Justin Rice is an Associate with Tucker Ellis LLP in Cleveland, Ohio. He practices primarily in the areas of products liability and business litigation. As a member of Tucker Ellis's Medical & Pharmaceutical Liability Practice Group, Justin works with law firms around the country in both national and local counsel capacities, defending manufacturers of pharmaceuticals and medical devices. He can be reached at justin.rice@tuckerellis.com.

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If you’re looking forward to your flight to South Florida as much as I am (and attending DRI's Young Lawyers seminar), you’ve probably already got your stack of magazines ready.  In flipping through US Weekly, I noticed the Snickers ad campaign “Help Us Bar Hunger.”  Snickers is donating the cash equivalent of 2.5 Million meals and an additional cash donation in an amount equal to 2 meals will be made for each 8 digit or 12 digit Bar Code Number entered on www.snickers.com until June 27th.  There is a ten bar maximum per day, so don’t get too carried away.    

Snickers is not alone in our quest to fight hunger:  Baskin Robbins will provide one meal for every sale of their Iced Cappy Blast or new “like” on their Facebook page; and Harry’s Seafood Bar and Grille will donate $1 from every Po’Boy to the Florida Association of Food Banks.

The DRI Young Lawyers Committee will continue our tradition of community service by spending an afternoon with Feeding South Florida on June 13th at 12:30 p.m. Attendees will inspect, clean, sort and get donations ready for distribution to partner agencies and their clients.  Participation is open to all seminar attendees and their families (age limits may apply). Transportation will be provided. Please join us in this opportunity to give back to the South Florida community while developing and strengthening relationships with your fellow young lawyers.  

Looking forward to seeing you on June 13th!

Note:  Neither Snickers nor Baskin Robbins are sponsors of this blog or DRI.
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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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