wtlc fall 2013

Preparing in Advance for the Defense Expert’s Deposition

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Gay Civil Rights Momentum in 2013

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Surgical Mesh Implantation: An Evolving Litigation

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Are You Ready for e-Litigation?

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The Women’s Movement: 150 Years and Counting

One hundred and fifty years ago, in 1848, the Suffragettes held their first official meeting: the Seneca Falls Conference in

Seneca Falls, New York.

United in their task, they proclaimed that “[t]he history of mankind is a history of repeated inju-ries and usurpations on the part of man toward woman, having in direct object the establish-ment of an absolute tyranny over her.” They set forth the facts supporting their Declaration of Sentiments, some of which, thankfully, no lon-ger ring true (“He has denied her the facilities for obtaining a thorough education, all colleges being closed against her”). Others remain as true today as they ever were (“He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration. He closes against her all the avenues of wealth and distinction which he considers most honorable to himself. As a teacher of theology, medicine, or law, she is not known.”). Next, they made certain Resolutions, including

my favorite: “[r]esolved, that the speedy success of our cause depends on the zealous and untiring efforts of both men and women, for the overthrow of the monopoly of the pulpit, and for the secur-ing to women an equal participation with men in the various trades, professions, and commerce.”

Take a moment and think about the courage that these women mustered to speak out against in-equality in our society. Think about their fathers, brothers, and husbands, and how these brave

IN THIS ISSUE:

WTLCWOMEN

CAUCUSTRIAL LAWYERS

ConneCTions CounT | FALL 2013

LorI ANdrUSAndrus Anderson LLP

[email protected]

www.andrusanderson.com

“We women have been sticking together

for 150 years, and we’re going to keep

on picking each other up, pushing each other

along, and watching out for each other.”

continued on page 3

Message from the Chair, Lori Andrus:

American Association

for Justicewww.justice.org

justice.org/WtLcneWsLetters

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2 | ConneCTions CounT FALL 2013

San Francisco welcomed members of the American Association for Jus-tice (AAJ) to the AAJ Annual Con-

vention July 20-23, 2013. AAJ’s Women Trial Lawyer’s Caucus (WTLC) started the convention off with a bang on Fri-day night, with over two hundred law-yers heading by cable car to the home of AAJ member Ingrid Evans and Art Klein in Pacif-ic Heights. The party featured a taco and margar-ita bar and numerous state and federal legislators attended, including State Senators Hannah Beth Jackson and Ellen Corbett and U.S. Congressman Eric Swalwell, to name a few. The opening reception was a huge success and was made possible by the following sponsoring law firms: Khorrami, Boucher, Sumner & Sanguinetti; The Armstrong Law Firm; Arias, Ozello & Gignac, LLP; Emison & Hullverson; The Danko Law Firm; Andrus Anderson, LLP; Bour-dette & Partners, and the Evans Law Firm, Inc.

The WTLC Membership Meeting was held on Satur-day before a full room of women (more than 90 wom-en were present, the most highly attended women’s caucus membership meeting ever!) and was followed on Sunday by the much anticipated WTLC Brunch. We were honored to have journalist Melba Beals, one of the Little Rock Nine who was instrumental in de-segregating schools, speak to us at the Brunch. The WTLC and Minority Caucus Education Seminar was held on Monday, with many great speakers, includ-ing Stephen J. Herman, LA; Jeanmarie Whalen, FL; Gerald J. Diaz Jr., MS; Lauren Barnes, MA; Tad Thomas, KY; Katherine James, CA; Elise Sanguinetti, CA; Curtis Osborne, NC; Dorothy Clay Sims, FL; Sonia Chaisson, CA; and Simona A. Farrise, CA. Later that week, we were proud to see four AAJ WTLC members elected as

officers of AAJ, including Lisa Blue Baron, Julie Bra-man Kane, Kathleen Nastri, and Elise Sanguinetti. WTLC events were not the only successful events at this convention. There was a private opening reception at San Francisco’s new Exploratorium and a beautiful dessert reception for AAJ President Burton LeBlanc at City Hall. The convention had a number of programs, including business and informational meetings on various areas of law, exhibit sponsor booths, CLE programs, and events with well-known speakers including trial lawyer legend Gerry Spence. Convention attendees were addressed in an emotionally charged speech by Trayvon Martin’s mother, who continues to seek justice for her son. Each night was capped off with multiple social networking events, a critical part of the Convention, and one of the best ways to meet attorneys in other jurisdictions where you may need local counsel to enforce a subpoena, de-

pose witnesses, or file a case. AAJ also hon-ored outgoing AAJ President Mary Alice

McLarty for her successful year and dedication to AAJ.

The next AAJ convention will be packed with fun in New Orleans from February

8-12, 2014. The WTLC is planning to con-tinue its tradition of starting the convention

with a party on Friday, February 7, at a location to be announced soon. Plan to be in town early, the party will start at 5 p.m. You can register for the con-vention at www.justicewinterconvention.org/.

AAJ Women Trial Lawyers Caucus Convention updateBy ingrid M. evans

Ingrid M. EvansEvans Law Firm, Inc.San Francisco, [email protected]

Evans and the Evans Law Firm focuses on elder financial and physical abuse, consumer fraud class actions, whistle- blower/qui tam, and personal injury cases. Ms. Evans is on the Executive Committee for Consumer Attorneys of California (CAOC). Ms. Evans is also on the Board of Governors for the American Association for Justice and Public Justice.

THUrSdAy, ocTobEr 3AAJ PAc drive9:00 am – 4:00 pm777 6th St. NWWashington, DC

FrIdAy, ocTobEr 4WTLc Membership Meeting11:30 am – 12:30 pmCulpeper, Ballroom LevelFairmont HotelWashington, DC

FEbrUAry 8–12AAJ Winter conventionSheraton HotelNew Orleans, LA

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22% of AAJ’s Board of Governors seats

4/6 of AAJ’s

executive officers

30% of AAJ Presidential

Appointments

16% of AAJ’s

Membership

3 | ConneCTions CounT SUMMEr 2013

cont. Message from the Chair, Lori Andrus women had to navigate those relationships in order to claim equal standing in the world. Our modern day problems pale in comparison, don’t they?

Now, take a moment to think about the fact that these women had male allies standing with them. They were joined by men who also believed in the principle that “all men (and women) were created equal.” Most notably among their compatriots was Frederick Doug-las. Humbling, isn’t it?

In this 150th anniversary year, let us celebrate the progress that has been made, and let us acknowledge the challenges we still face: as women, as women trial lawyers, as mothers, sisters, and spouses. Let us appre-ciate the men among us who understand our struggle, and who are not threatened by our success. Mostly, let us be grateful for the fearlessness of the Suffragettes, and for the personal sacrifices they made for each and every one of us.

Today, four of AAJ’s six Executive Officers are women. While women comprise 16% of AAJ’s membership, we hold 22% of AAJ’s Board of Governors’ seats, and regularly top 25% of Convention attendees and more than 30% of AAJ Presidential appointments. We work hard. We are fierce advocates for our clients. We are the most trusted voice in the courtroom and are in-creasingly found in judgeships, political office, and other positions of power. Times have indeed changed.

We women have been sticking together for 150 years, and we’re going to keep on picking each other up, push-ing each other along, and watching out for each other. In the spirit of our Suffragette sisters, if I can be of any service to you, please do not hesitate to contact me at [email protected].

Onward,

Lori AndrusChair, Women Trial Lawyers Caucus

The Women Trial Lawyers Caucus (WTLC) is steadily increasing our numbers, visibility, and influence within AAJ. Here are some ways that you can get more involved:

• Apply to speak at an AAJ Education program or submit an article to Trial magazine. We all have expertise to share and AAJ is truly dedicated to providing women opportunities to shine. If you don’t know where to start, contact one of the WTLC Education Co-Chairs, Esther Berezofsky, Ellen Presby, and Betsy Greene.

• Join the WTLc Listserv. All women AAJ members are automatically enrolled in the WTLC. However, you must “opt in” to the WTLC listserv. Have you? If not, you can sign up at www. justice. org under “Professional Resources.”

• Attend the Winter convention in New orleans in February 2014 and the Annual convention in baltimore in July 2014. The WTLC hosts a reception on the Friday night preceding Convention, so come early! Other WTLC events during Convention include the WTLC Membership Meeting and the WTLC Brunch.

• Attend the Women’s Leadership Summit in baltimore on July 25, 2014. You’ll gain valuable insights on how to be the best trial lawyer you can be, and how you can lead in your community, in your law firm, and in your profession.

• Help the WTLc raise funds for pro-civil justice candidates. AAJ has a strong record of supporting winning candidates, and taking back the House is a real possibility in 2014. The WTLC plays an integral role every campaign cycle, and this one will be no different. To help shape the next Congress, contact one of the WTLC Fundraising Co-Chairs, Jennifer Moore, Victoria Schall, and Rebecca Langston.

• become politically active. Our Political Outreach Committee helps WTLC members build and maintain relationships with lawmakers. These relationships are key to promoting pro-civil justice legislation and combating so-called “tort reform” measures. Contact Co-Chairs Tiffany Ellis, Lauren Barnes, and Genevieve Zimmerman to get started.

• become a mentor/mentee. The WTLC Mentor program is a great way to get to know another woman trial lawyer. She may be in a different city, or even have a different specialty, but these personal relationships are vital to professional success. Contact Co-Chairs Erin Dickinson, Katie Hubbard, and Ingrid Heide if you’re interested.

WoMEN MAkE UP:

mailto:[email protected]














Gathering information about the adverse medical expert prior to taking his or her deposition can optimize the time spent

during deposition. Most of such information is available at no cost. I personally believe beside ev-ery successful lawyer should be a dedicated legal assistant. An organized legal assistant is the key to gathering the right information before deposition. You and your legal assistant can work together on preparation of the medical expert’s deposition.

I have divided the available information that can be gathered ahead of the medical expert deposition into seven categories: 1) formal discovery requests; 2) general historical information; 3) academic train-ing and accomplishments; 4) ethical standards/guidelines; 5) articles and publications; 6) disci-plinary action; and 7) professional and personal liti-gation. It is my hope that this information will help you and your legal assistant develop a checklist that can be completed before your next medical expert deposition and have provided a sample of such a checklist at the end.

1. FoRMAL DisCoVeRY ReQuesTs

Expert InterrogatoriesPursuant to respective state rules and under Rule 26(a)(2) of the Federal Rules of Civil Procedure, we all use form expert interrogatories requiring the de-fendant to set forth its expert’s generalized opinions and the minimal information going to bias. The Fed-eral Rule requires disclosure of the retained expert’s opinion in a written report prepared and signed by the witness. In addition, discoverable in many states are financial earnings derived from litigation, the relationships between the defense law firm and ex-pert, as well as the relationship between the insurer and expert, even if the defendant is the insured.

In some states, such as Florida, the expert must also provide his testimonial history for the last three years if he wishes to testify in court. Many defen-dants respond by asserting that they don’t have or don’t know the information. Unfortunately, many judges are reluctant to seriously consider striking an expert for the failure to provide this history until you have exhausted other attempts to obtain it. De-posing the records custodian of the expert orally, or

by written deposition questions provided for in your state rules of procedure, can sometimes obtain this information.

If you are successful in obtaining a testimonial history from your adverse expert, check it against these databases which contain expert testimony to discover omissions:• TRiALsMiTH: www.trialsmith.com. This da-

tabase was formerly Depoconnect, and is en-dorsed by fifty-two trial Lawyer associations worldwide. It houses 137,000 depositions, and is the largest online bank of its kind in the nation. One search gives you information on experts and topics from 18 different databases.

• Contact by phone or write state Trial Lawyers As-sociations. An example of such a listing by state with links to their home pages can be found at: www.hg.org/trial-lawyers-associations-usa.html.

• Conduct a Westlaw or Lexus search. Although you must subscribe to these services, searches can be conducted in Florida, the state where the expert lives, and in the Federal Courts. The member who suggested this kind of search was fortunate to find that an expert he was prepar-ing to depose had been “daubertized” in the area he was offered by the defense.

Request To ProduceAt a minimum, you must have the defense expert’s Curriculum Vitae for your research prior to the deposition. Further, consider generating your usual duces tecum list as a formal document request to avoid the argument that you have not given the de-fendant/expert reasonable notice for the document production. Request copies of all documents provid-ed to the expert, or alternatively request that they be produced for review at the deposition.

2. GeneRAL HisToRiCAL inFoRMATion

There are many databases with generalized infor-mation about the expert you are researching. We have highlighted the ones we utilize.• Google: www.google.com. Google consistently

turns up high-quality, highly relevant results. You can utilize specific queries for a given expert by their name alone or by adding to the search query their listed affiliations, such as “American Pediatric Neurological Organiza-tions.” You can use plus or minus signs to in-clude or exclude keywords, or you can head to the Advanced Search page for drop-down pick

Preparing in Advance for the Defense expert’s DepositionBy Janabeth Fleming Taylor

Janabeth Fleming TaylorLitigation Paralegal Attorney’s Medical Services, Inc. Corpus Christi, [email protected] www.attorneysmedicalservices.com

Janabeth Fleming Taylor, R.N., R.N.C. is the president/owner of Attorney’s Medical Services, Inc. in Corpus Christi, TX. She provides liti-gation support for attorneys across the United States and specializes in case reviews and Internet information resources. Named the Association of Trial Lawyers of America’s Paralegal of the Year in 2002, Janabeth has been a medical legal consul-tant for more than 20 years.

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continued on the next page

lists to construct complex search-es. Another helpful search tool is the Google “News” tab. Here you can search over 4,500 news sources which are updated continuously. For more information on the various informa-tion available via Google, here is a link to tutorial on this topic: www.attor-neysmedicalservices.com/research_using_google.html

• national Association of state Jury Verdict Publishers: www.juryverdicts.com. The National Association of State Jury Verdict Publishers (NASJVP) pub-lishes Jury Verdict Summaries from throughout the United States. These collect detailed civil litigation infor-mation directly from the attorneys who tried the cases, then write con-cise summaries, which are used by attorneys and insurer for case eval-uation. Additionally, you will find at-tached to this site a Directory of Expert Witnesses, which contains the names, area of expertise, and publication in which they were referenced. There is a searchable database to locate experts and “Cases Testified” for use in the se-lection or challenge of an expert.

• state and Local Trial Lawyer Associ-ations. Write to fellow state TLA/AAJ members for input on the expert. Also,

utilize member contacts via The Ameri-can Association for Justice/AAJ found at: www.justice.org, especially, those AAJ members who are located in the state where your “out of state expert” is locat-ed. For a directory of AAJ members go to www.justice.org where there is a searchable directory of members.

One AAJ member utilizing this research

method reports that he received a phone call in response to his facsimi-le letter to a fellow member. He hit pay dirt when he found out that there had been 126 newspaper articles written about this expert. The defense medical expert pathologist was using the medi-cal examiner’s office to fund his expert witness business and had been charged and convicted of several felonies relat-ed to his “business.”

One link to the various state Trial Lawyer Associations is found here: www.justice.org/cps/rde/xchg/justice/hs.xsl/920.htm.

ACADeMiC TRAininG AnD ACCoMPLisHMenTs

• subpoena the expert’s transcripts. You should consider the timing of this re-quest, since you may want to allow him to commit to a position during the

deposition. One attorney utilizing this research method reports he learned that a defense expert had attended school by mail.

• search for Board Certifications. The American Board of Medical Special-ties (www.abms.org) has a database which can be searched using a physi-cian’s name. General databases of in-formation will not include information regarding the number of attempts at Board Certifications. However, individ-ual Web sites for medical specialties often do provide more complete infor-mation, as well as practice standards and guidelines.

For example, the American Board of

Psychiatry and Neurology, Inc. Web site (www.abpn.com) walks a subscrib-er through the process for requesting Board status information and provides the request form online. The request must be in writing and must be accom-panied by the required fee.

The portal www.certifacts.org in-cludes an annual subscription rate and is a database containing board certifications and disciplinary actions in one place rather than taking you to each individual medical specialty.

Samples of some online resources.


• Request verification of license in writ-ing. State Medical Boards: The Feder-ation of State Medical Boards has a listing of State Medical Boards, includ-ing full contact information, at www.fsmb.org/.

Many of the State Medical Board sites

have board hearings, discipline notes, etc. posted for public verification and are a free resource for witness/expert investigation. One link to these resourc-es if found here: www.noah-health.org/en/usmd/state.html.

• Verify that your adverse expert is noT a Quack by going to www.quackwatch.com/index.html. This database con-tains exhaustive lists of “quacks,” FDA warning letters, regulatory actions, and “non-recommended” sources of Health Advice.

4. eTHiCAL sTAnDARDs

Many professional organizations have ethical guidelines that include standards for testimonial opinions. Knowing these standards can prove helpful in establish-ing the bias of the defense expert, espe-cially if he is unaware they exist.• American Academy of Forensic sci-

ences: www.aafs.org. This organi-zation has a written code of ethics included in its bylaws. The American

Academy of Forensic Sciences By-laws, Code of Ethics and Conduct, Art. II, Section 1 (1999). The code of ethics prohibits the making of ma-terial misrepresentations of edu-cation or data upon which their professional opinions are based.

• American College of emergency Physi-cians: The ACEP has established guide-lines for expert witnesses. These guide-lines can be viewed at www.acep.org, and contain a requirement that the expert witness be willing to submit his deposition testimony to peer review. Further, false, fraudulent, or misleading testimony can expose the physician to disciplinary action.

• American Medical Association: www.ama-assn.org. The AMA Code of Ethics can be viewed online at www.ama-as-sn.org and contains a fundamental ethical requirement that a physician should at all times deal honestly and fairly with his patients (E-8.12). Further, patients have a right to know their past and present medical status and to be free from mistaken beliefs concern-ing their condition. The Code of Ethics is also published at Ann Emerg. Med. 1997; 30:365-366 and was approved in June 1997.

• American Academy of neurology: www.aan.com. The American Academy of

Neurology Web site posts not only a professional guideline index (www.aan.com/about/ethics/code.cfm), but also posts a listing of Ethical Guidelines which include a guideline for members serving as expert witnesses (www.aan.com/about/ethics/ethics_pos.cfm).

• Professional Guidelines: There is a pub-lic resource for evidence-based clinical practice guidelines and this can be found via the searchable database at the National Guidelines Clearinghouse at www.guidelines.gov. Key compo-nents of NGC include:• Structured abstracts (summaries)

about the guideline and its devel-opment.

• Links to full-text guidelines, where available, and/or ordering infor-mation for print copies.

• Palm-based PDA Downloads of the Complete NGC Summary for all guidelines represented in the database.

• A Guideline Comparison utility that gives users the ability to gen-erate side-by-side comparisons for any combination of two or more guidelines.

• Unique guideline comparisons called Guideline Syntheses pre-pared by NGC staff, which compare guidelines covering similar topics, highlighting areas of similarity and difference. NGC Guideline Synthe-ses often provide a comparison of guidelines developed in different countries, providing insight into commonalities and differences in international health practices.

5. ARTiCLes oF PuBLiCATion Look for articles which the defense expert has authored or co-authored in your sub-ject area. Often articles of publication are referenced on the expert’s curriculum vi-tae. Even when they are not so referenced, many can be obtained on the internet.• PubMed Database: www.ncbi.nlm.nih.

gov/PubMed. The PubMed database was designed by publishers of biomed-ical literature as a tool to access and reference citations and provide a link to full-text journal articles at the Web


sites of participating publishers. It is a component of the National Library of Medicine. Publishers participating in the database electronically supply their citations prior to or at the time of publi-cation. User registration, a subscription fee, or some other type of fee may be required to access the full-text of articles in some journals. Here is a link to an article with tips on using the PUBMED database: www.attorneys-medicalservices.com/tapping.html.

• MD Consult Database can be found at www.mdconsult.com. This data-base was founded by leading medical publishers that include Mosby and W.B. Saunders. MD Consult integrates peer-reviewed resources from over 50 publishers, medical societies, and gov-ernment agencies. From this site you can obtain full text articles (many in PDF format) from more than 50 respect-ed medical reference books from a va-riety of specialties, 80 medical journals and the Clinics of North America as well as MEDLINE. In addition you can obtain comprehensive USP drug information, (beyond the scope of a PDR), and more than 1,000 clinical practice guidelines. This is not a free service, but there is a 30-day free trial currently available.

6. PRoFessionAL AnD PeRsonAL LiTiGATion HisToRYOccasionally, you actually get lucky enough to find that the defense expert was not at the Emergency Room rendering treatment to your client because he was stopped for a DUI violation, or his personal litigation makes the defense lawyer who retained him uncomfortable.• search the local docket where your

expert is located. Many of the state and county court clerk offices around the country have their docket archive available online. You can find a list of which ones are online at www.ncsc.dni.us/nCsC/Tis/Tis99/PuBACs99/PublicAccesslinks.htm. When per-forming such a search be sure you search both the Criminal and Civil dockets and in the county where your expert lives. Search with name as both Plaintiff and Defendant.

• Questionable Doctors: www.question abledoctors.org/intro.cfm. Question- able Doctors is a comprehensive, pub-licly available databank that contains information on doctors who have been disciplined by state medical boards and federal agencies in the past ten years. It contains data on disciplinary actions taken for medical incompetence, wrongful prescribing of drugs, sexual misconduct, criminal convictions, ethical lapses and other offenses.

• AiM/DocFinder: www.docboardorg/doc finder.html. DocFinder is a searchable database of licensing background and disciplinary information for physicians and other health care practitioners.

• PuBLiCDATA: www.publicdata.com. PublicData was started on September 1, 1997 and was originally incorporat-ed outside the United States. In 1997, government attitude toward making access to public records easy and in-expensive was to confront those who did so with threats of prosecution and civil penalties. Ultimately, after some lobbying and law changes, PublicData was moved into the US in 2004. For a small fee your firm has “low cost” re-al-time access to Public Records.

• Here is a link demonstrating the var-ious databases via which PublicData provides information: demo.publicda-ta.com/pdmain.php/Logon/home.

I have compiled a general duces tecum list for the medical expert’s deposition. Consider adding any of the following to your subpoena duces tecum for deposition, and then SERVE the expert within the time required prior to his deposition.

General Duces Tecum List for the Medical or Professional Expert’s Deposition

• Materials prepared for presentation at professional meetings in your subject area

• Certificates, memberships, awards

• Patents held by expert or expert’s employer (Statement of Claims may recognize the hazard and what hazard the invention is intended to ameliorate)

• A copy of your Ph.D. thesis (if applicable)

• Copies of articles submitted for publication

• Copies of abstracts submitted for publication

• Copies of requests and applications for continuing medical education credits for seminars and courses attended

• A listing of reliable authorities (rather than authoritative) in the subject area made the basis of the lawsuit

• A copy of your license to practice medicine, or other professional licenses (MD, PhD, PE, etc., if applicable)

• A copy of your advanced degree diploma (MD, PhD, PE, etc., if applicable)

• A copy of all documents provided to you for review in the subject case


kelly ArmstrongThe Armstrong Law Firm San Francisco, [email protected]

Matt StanfordCalifornia Civil Rights Law Group, San Francisco, CA [email protected] Kelly Armstrong is the founding partner of The Armstrong Law Firm in San Francisco, California. She is a lecturer and published author on a variety of issues related to employment law. Ms. Armstrong has represented cli-ents in wrongful termination and sexual harassment cases against the nation’s largest companies for the past decade and her cases have been featured in the national and international media.

Matt Stanford is the Litigation Di-rector at the California Civil Rights Law Group in the Bay Area. He graduated from Penn State Uni-versity at the top of his class and aspires to a career in civil rights law and politics. Matt is currently applying to law school and plans to begin attending in the Fall 2014 semester.

Gay Civil Rights Momentum in 2013: Historic Year for LGBT Rights with More efforts neededBy Kelly Armstrong & Matt stanford

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Marchers and protesters rally at the steps of Los Angeles City Hall on November 15, 2008 in protest of passage of California’s Proposition 8 banning gay marriage.


Following the Supreme Court’s rul-ings on the Defense of Marriage Act (1 U.S.C. § 7 and 28 U.S.C §1738C) and

California’s Proposition 8, those who com-mitted themselves to the furtherance of civil rights felt rewarded and a part of the historic momentum underway.

It was only two short months ago that le-gally married same-sex couples across the country were being deprived of the “duties and responsibilities that are an essential part of married life,” even if their own home state legally recognized same-sex marriage. As Justice Kennedy wrote in the majori-ty opinion in United States v. Windsor, 570 U.S. ___ (2013), the Defense of Marriage Act placed “same-sex couples in an unstable position of being in a second-tier marriage.”

Here in California, things were even worse for members of the LGBT community. Thanks to a fear-driven and well-funded campaign in 2008, the passage of Propo-sition 8 deprived same-sex couples in our state of a marriage certificate in addition to survivor benefits and other benefits with-held by the Defense of Marriage Act.

There is much to celebrate as leaders and citizens across the United States finally ful-ly acknowledge that all humans are created equal under the law. In fact, it is tempting to fall prey to the idea that we as a nation have successfully made our way over to the right side of history. However, those of us in the legal profession know all too well the barri-ers that continue to confine these valuable citizens to second-class status.

Legislatures Behind the Times on LGBT Rights

In the last year, six states—Washington, Maine, Maryland, Rhode Island, Delaware, and Minnesota—became the latest states to legalize same-sex marriages. However, thirty-seven states have yet to extend such

protections. In fact, less than half of all states offer any sort of legal protection for homo-sexual couples. Meanwhile, more than half have passed constitutional amendments ei-ther limiting or completely withholding legal protection for same-sex couples.1

This reality serves as only one measure of how far we still have left to go. Furthermore, although marriage is certainly an import-ant issue and has understandably been at the top of the agenda for many of the or-ganizations that have mobilized support for LGBT rights, the push for equality far sur-passes this one issue.

It only seems appropriate that we find our-selves commemorating the 50th anniversa-ry of the March on Washington and Martin Luther King’s “I Have a Dream” speech as our attention is being called to the rights of yet another historically marginalized seg-ment of our American society.2 Much like the Civil Rights Movement of the 1960s, the push for LGBT rights has extended beyond the altar and into our places of business. In the last year alone, we saw headlines of a gay couple being kicked out of a mall for kissing and holding hands, and another couple being dumped on the side of a rain-drenched highway by a cabbie who decided that an innocent kiss by a same-sex couple was the equivalent of “making sex” in the back seat. In a similarly despicable incident, a lesbian couple was left on the side of a busy Oregon highway after being verbally lambasted by their cab driver for holding hands and kissing.3,4,5

California offers effective Legislative Model for Civil Rights

As it currently stands, the language of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 21) only explicitly extends protection against discrimination on the basis of race, color, religion, sex or national origin. This stands in stark contrast to the approach

taken by states like California, who have passed laws protecting consumers and employees from discrimination based on a far more comprehensive list of protect-ed categories.

Under the Unruh Civil Rights Act (Cal. Civ. Code § 51et seq.), California picks up where the Civil Rights Act left off by offering the following protection (emphasis added):

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national ori-gin, disability, medical condition, genetic infor-mation, marital status, or sexual orientation are entitled to the full and equal accommoda-tions, advantages, facilities, privileges, or ser-vices in all business establishments of every kind whatsoever.

The state takes a similarly comprehensive approach with respect to employment. Through the California Fair Employment and Housing Act (Gov. Code § 12900 et seq.), employees and tenants are provided with legal recourse in the event that they are dis-criminated against on the same set of pro-tected categories, with the notable additions of gender identity and gender expression.

Several states have followed this model and offer legal recourse to those subject-ed to discrimination based on their sexual orientation. Nevertheless, many have still not passed any such laws protecting their LGBT citizens from this kind of discrimi-nation. Even the federal government re-mains reluctant to expand the Civil Rights Act to prevent discrimination on the ba-sis of sexual orientation. This is perhaps more disconcerting because a legislative fix entitled the Employment Non-Discrim-ination Act (ENDA) has been introduced in every Congress since 1994, but to no avail.6

The proposed statute would prohibit dis-crimination in hiring and employment on the basis of sexual orientation and gender

1 Freedom to Marry, Inc. and Freedom to Marry Action, Inc., “Where State Laws Stand,” available at www.freedomtomarry.org/pages/where-state-laws-stand (last visited August 27, 2013).2 Voice of America, “US Celebrates 50th Anniversary of Civil Rights March,” available at www.voanews.com/content/us-celebrates-50th-anniversary-of-civil-rights-march/1735973.html (last visited August 27, 2013).3 Christine Roberts, “Gay Couple say they were asked to leave California mall for kissing,” New York Daily News, available at www.nydailynews.com/news/national/gay-couple-asked-leave-california-mall-kissing-arti-cle-1.1279990 (last visited August 27, 2013). 4 CBS Chicago, “Two Men Say Cabbie Ejected Them For Kissing,” available at chicago.cbslocal.com/2013/05/31/two-men-say-cabbie-ejected-them-for-kissing/ (last visited August 27, 2013). 5 Maxine Bernstein, “Broadway Cab driver suspended after allegedly forcing same-sex couple out on I-84,” The Oregonian, available at www.oregonlive.com/portland/index.ssf/2013/07/broadway_cab_driver_suspend-ed.html (last visited August 27, 2013). 6 American Civil Liberties Union, “Employment Non-Discrimination Act,” available at www.aclu.org/hiv-aids_lgbt-rights/employment-non-discrimination-act (last visited August 27, 2013).


identity. However, despite having more than 100 co-sponsors the first time it was introduced, a shift in the political composi-tion of Congress that year dashed all hopes of its passage and set the tone for the decade that has since passed.7 As a result of such foot-dragging, employers have remained free to harass, discriminate against, and ex-clude this historically oppressed group from commercial activity with impunity.

That said, as tempting as it is to celebrate our nation’s progress with respect to LGBT rights, it is equally easy to let harsh realities such as these distract us from the trajecto-ry on which we find ourselves as a country. While state and federal legislatures may be slow to bring our laws into the twenty-first century, the courts have been recognizing that existing law may already provide the necessary protection to put a stop to the marginalization that legislators seem reluc-tant to acknowledge.

Courts Recognize Legislative Purpose in existing statutes

In addition to the Supreme Court’s land-mark decision in Windsor and the effective death blow it dealt Proposition 8 by refusing to rule in Hollingsworth v. Perry, 570 U.S. ___ (2013), there is a slower, more subtle trend afoot with respect to the employment and consumer rights of LGBT citizens.

Although it may not have been intended to provide such a basis when it was decided, it actually began with a 1989 Supreme Court decision regarding Title VII. In the mat-ter of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court ruled in favor of the plaintiff, Ann Hopkins, who was refused a promotion to partner on the basis that she did not fit the expectations associated with femininity. Management at Price Water-house went so far as to suggest that what Ms. Hopkins needed was a “course in charm school.” In fact, they told Ms. Hopkins that she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” if she wanted to be seriously considered for the promotion.

In its ruling, the Court observed that, but for their criticisms of Ms. Hopkins’ supposed lack of feminine qualities, the employer lacked any other basis for denying her the promotion. Thus, the Court ruled that Price Waterhouse violated Title VII’s pro-hibition against gender-based discrimi-nation. More substantively, the Court held that once a plaintiff demonstrates that gender was a motivating factor in an em-ployment decision, the burden then shifts to the employer to show by a preponder-ance of the evidence that it would have made the same decision irrespective of gender—or in this case, those stereotypes associated with a specific gender.

Whether the Court knew it or not, the rec-ognition of a right against discrimination based on gender stereotypes would even-tually provide the necessary foundation for LGBT citizens to assert their rights in the workplace.

In fact, Hopkins served as such in 2009, in the matter of Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009), when the Third Circuit overruled a trial court’s deci-sion to dismiss a discrimination case filed by a homosexual male employee. During his employment with Wise Business Forms, the plaintiff, Brian Prowel, complained about co-workers calling him derogato-ry names, leaving him obscene notes, and even prayer cards from his more religious coworkers. More notably, however, was the way Mr. Prowel recalled his more masculine coworkers responding to his behavior:

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the

way a woman would sit”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and décor; and pushed the buttons on the nale encoder with “pizzazz.”

Although the discriminatory conduct was blatantly homophobic in nature and would have been more easily actionable with a statute such as ENDA that explicitly barred such conduct on the basis of sexual orien-tation, the gender-based nature of the con-duct itself was found to be sufficient for Mr. Prowel to have standing. In its ruling, the Third Circuit held that the employee had standing to sue under Title VII as his argu-ment was that his employer discriminated against him on the basis that he did not conform to expected male norms. Specif-ically, Judge Hardiman wrote, “There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.” That is, so long as the argument is couched in language of gender stereotypes rather than sexual orientation, Title VII of-fers a legal basis for homosexual employees to use as a means to obtain similar ends.

Last year, that same argument was made available to transgender employees seeking protection under Title VII. In the matter of Macy v. Holder, Appeal No. 0120120821 (U.S. Equal Employment Opportunity Commis-sion, Apr. 20, 2012), the commission deter-mined that an employment decision made based on the fact that an employee is trans-gender violated the Civil Rights Act of 1964 on its face.

Citing to the aforementioned Price Water-house decision, the commission found that when an employer discriminates against an employee for being transgender, such

7 National Gay and Lesbian Task Force Foundation, “History of Nondiscrimination Bills in Congress,” available at www.thetaskforce.org/issues/nondiscrimination/timeline (last visited August 27, 2013).

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

—Martin Luther King, Jr.


discrimination is nevertheless “related to the victim’s sex” irrespective of whether such treatment is “because the individual has expressed his or her gender in a non-stereo-typical fashion, because the employer is un-comfortable with the fact that the person has transitioned or is in the process of transition-ing from one gender to another, or because the employer simply does not like that the person is identifying as a transgender per-son.” Although the courts are not obligated to follow EEOC rulings, such decisions have reg-ularly provided a source of guidance to the courts, especially in matters with relatively nuanced subject matter.

Civil Rights: Mutual interest vs. Mutual Demise

Needless to say—and notwithstanding the unwillingness of the legislature—progress is being made. Specifically, it appears that the courts have embarked on the long, de-liberate process toward determining that a

failure to at least effectively extend these rights to LGBT citizens would serve to com-promise the ultimate purpose of these long-standing laws.

As MLK observed while in the throes of the Civil Rights Movement, “[T]he arc of the moral universe is long, but it bends toward justice.” Justice is not a fixed target, but a moving one. We move ever closer with each progressive step we take, yet we never actu-ally arrive. In the pursuit of perfect justice, we find that there is really no such thing. However, there is no reason to see this re-ality as bleak. Instead, it should serve as re-assurance that there will always be more to do, that there will always be more that we can do to ensure that fewer people are left on the fringes of society. Therefore, we find ourselves in a unique po-sition as members of the legal profession. From private practitioners to judges to poli-cymakers, it is incumbent upon us all to see the opportunity we have before us and the

social duty we have to use our expertise to affect a more just legal system. Regardless of political ideals and affiliations, we must be willing to look past these narrower inter-ests so that we may continue to inch closer toward that ever-elusive goal. “Injustice anywhere is a threat to justice everywhere. We are caught in an inescap-able network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

True to MLK’s words, the present struggle toward greater equality—at the present mo-ment, for the LGBT members of society—is a shared one, in which all have an interest. We cannot support, or even allow for, the denial of basic rights to one segment of the popu-lation without simultaneously risking those rights for ourselves. Thus, the only question that remains is whether we will see this op-portunity for what it is, or if we will allow ourselves to continue missing the forest for the trees.

WHAT is “MesH?”

Surgical mesh has been used since the 1950s to reinforce soft tissue or bone where weaknesses exist in the human body. The mesh serves a pur-pose not unlike a patch for a pair of pants with a hole that must be closed or “stitched.” Some-times our bodies require the same “stitching.” Just as a small piece of cloth can be used to re-pair the pants, likewise at times surgeons use a small piece of mesh to repair an internal weak spot, hernia, or other medical problem. Unlike the piece of cloth, surgical candidates would general presume that surgical mesh is created by a company that prepares this synthetic ma-terial in a way that ensures it is completely safe for use in our bodies. Not true. Mesh is simply a piece of cloth prepared from synthetic threads of polypropylene, polyethylene, or prolene. Had people known it was just a big synthetic cloth, no one would have used it. Therefore, companies

began to cut it to special sizes, package it nicely, and call it “surgical mesh.”

surgical uses:

Doctors most commonly utilized mesh repair for hernias until the 1970s, when gynecologists be-gan using surgical mesh for abdominal repair of pelvic organ prolapse (POP). In the 1990s gyne-cologists began to use surgical mesh for stress

surgical Mesh implantation: An evolving LitigationBy Candice Mcnabb

Candice McNabb is an attor-ney at The Potts Law Firm with significant experience in mass torts, including phar-maceutical, medical device, and gas explosion/disaster cases. She currently serves as the Treasurer of the Amer-ican Association for Justice Alloderm Litigation Group.

candice McNabbPotts Law Firm Houston, [email protected]

Surgeon cutting surgical mesh.


urinary incontinence (SUI) treatment and transvaginal repair of pelvic organ prolapse. To do so, physicians would cut the mesh into the desired shape and place it intra- abdominally. As demand rose, manufac-turing companies saw the opportunity to pre-cut the mesh and design products spe-cifically for POP and SUI. The FDA cleared the first surgical mesh products specif-ically for POP in 1996, and thereafter for SUI in 2002, under its 510(k) process, rely-ing on studies and information available through hernia mesh research and abdom-inal placement. Regardless, manufacturers leapt on this perceived demand and creat-ed an opportunity to maximize their prof-its from these “kits” by developing new in-sertion tools, tech niques, and adding other materials. In 2010 alone, there were 75,000 pelvic prolapse repairs done transvaginally.

Kugel Litigation:

The problems with surgical mesh first came to the legal community’s attention with the FDA recall of the larger C.R. Bard Kugel meshes in 2005, followed by an-other in 2006 and 2007 recalling different sized patches. The Kugel patch contained a “memory coil ring” to help deploy the device. The physician could fold the patch like a taco and insert it into a laparoscopic cut, where it would open up and fully ex-pand. Unfortunately, with increased stress the ring would break, resulting in the broken ends poking through the mesh and perforating the bowel and other ma-jor organs. Additionally, scar formation around mesh was found to be inevitable. Scar tissue naturally contracts, causing mesh to shrink. While the mesh shrinks, the “memory ring,” made from plastic contorts, buckles, and sometimes breaks, causing serious bodily injury.

Transvaginal Mesh Litigation:

It soon became obvious that contracture was not the only problem with surgical meshes, when in October 2008, the FDA warned physicians and consumers about transvaginal mesh (TVM) products. Unlike the Bard Kugel litigation, various versions of TVM products were being manufac-tured and distributed by several compa-nies. In an attempt to capture the 11-19%

of women who receive POP and SUI oper-ations before the age of 85, manufacturers provided physicians with pre-cut mesh and instruments to treat these prob-lems vaginally instead of abdominally. This new “less-invasive” approach enticed gynecologists with its shortened opera-tion time and quicker recovery. With no human studies, manufacturers substitut-ed hernia mesh research, and began pro-ducing and distributing these products to surgeons all over the country. Over time, physicians, surgeons, and the general public alike came to realize that the thou-sands of women implanted with these de-vices were acting as human studies and the manufacturers were failing the test.

In fact, all existing mesh “kits” today were piggy backed on pre-existing devices that were removed from the market for one reason or another. In 1996, the ProteGen Sling was approved after a 90-day study on rats. After high rates of erosion and complications, the sling was withdrawn from the market in 1999. The ObTape by Mentor Corporation was approved as “equivalent” to the Tension-Free Vaginal Tape made by Ulmsten and has also been withdrawn. Despite recalls, many com-parable devices approved by the FDA, as “equivalent,” remain on the market with-out needed undergoing rigorous studies

A search of the Manufacturer and User Device Experience database revealed that between January 1, 2005 and December 31, 2010, 3,979 reports of injury, death, and malfunction of transvaginal mesh had been reported. The most frequently re-ported complications were erosion, pain, bleeding, and organ perforation. Between 2008 and 2010, there were seven reported

deaths associated with POP repairs, lead-ing to a second FDA Public Announce-ment in July of 2011. The FDA found that mesh erosion was not rare, that the mesh was contracting causing vaginal shorten-ing, tightening, and pain. More than half the women who experienced erosion re-quired surgical excision in the operating room, and most required at least two to three surgeries. Most women suffered in silence because of the embarrassing and private nature of their symptoms.

To add insult to injury, it was recently dis-covered in the TVM litigation that one of the major manufacturers of transvaginal mesh not only knew the mesh they were pushing for human implantation was unfit for humans, but hid the information to continue its sales. They withheld this information from their suppliers like Chevron Phillips because they “will likely not be interested in a medical application due to product-liability concerns,” wrote Roger Darois, Davol executive via email. He further stated, “It is likely they do know of our implant application. Please do not mention Davol’s name in any dis-cussion with these manufacturers.”

Profits over People:

Both hernia mesh and transvaginal mesh product marketing touted less invasive surgical approaches. The mesh manu-facturers claimed their products would reduce operating time, and reduce down-time for the patient. Physicians were shown and taught easier procedures with smaller incisions while inserting a syn-thetic cloth into the human body. These “easier procedures” allowed less special-ized, less experienced surgeons to per-form these procedures after taking quick classes in glamorous venues so they could perform expensive surgeries they could never do before, in a shorter period of time and create more profit. In spite of the growing number of reported adverse events and the lack of human studies or rigorous testing, mesh manufacturers hid information and stayed in front of the curve by ever-slightly changing their products, calling them “improved,” and still continue to make a profit at the ex-pense of women’s reproductive health.

3,979 Reports of injury, death

and malfunction of transvaginal mesh

Between Jan. 1 2005–Dec. 31, 2010


I consider myself a Generation X-er and was raised watching Sesame Street, The Electric Company, Mister Rogers, and

later, Happy Days. I will leave you all guess-ing as to where exactly I fall in that time line, and revealing only to a certain select few. Now, when I am speaking to some-one in their 20’s or early 30’s, I sometimes feel like I am talking to someone from an-other world with a whole different techy language. Ladies and gentlemen, I give you this fascinating generational group of the Millennials. The millennial generation, born between 1980 and the early 2000s, has grown up never knowing a world without computers, video games, cell phones, or so-cial media. They are independent, diverse, educated, and able to express themselves in the 140-character world of Twitter. They are direct and politically aware.

Lawyers like us must educate ourselves as to how we can best reach this generation in the courtroom when we find them on a panel of prospective jurors or sitting right in the box on one of our very important cases. According to the Colorado State University College of Business, while the “baby-boom-er” generation appreciates body language, direct speaking, and details, the millennials want clarity and—most importantly—brev-ity. They are busy people used to constant activity and fast results. They didn’t just go

to school—they went to school, practiced a sport, and volunteered in the community before doing their homework. Their parents trained them to be the next president of the United States, the next Michael Jordan, and the smartest kid in class. Even if they may not have landed a great job or been at the top of their class, millennials have such a strong sense of self-worth that Joel Stein of Time magazine worries that they could be seen by some as a collection of narcissists.

When addressing millennial jurors, strik-ing a good balance between brevity and the need for information can be challeng-ing. Millennials want you to be short and to the point, and assume that they already know most everything necessary to decide the case. Such self-confidence is usually misplaced, and lawyers are left to wonder how they can explain a complicated med-ical process without offending millennials’ sensibilities.

With all due respect to the millennials, it would be worth boning up on your voir dire tech niques to uncover who of those could potentially be harmful to your cause if left on the panel and how to have them re-moved for cause.

However, once you have them on a panel, addressing this group may not be as hard as it sounds. According to Entrepreneur magazine, engaging the millennial gen-eration requires creativity and humor. Millennials expect more than just words and appreciate the sort of witty pictures and top-ten lists that characterize sites like Buzzfeed.com—a must-read for the

millennial generation. With Buzzfeed in mind, lawyers should recognize that mil-lennials like a presentation with a good sense of humor, and they like to be able to use comedy to wrap their heads around se-rious topics. Though cracking jokes is not always acceptable behavior in a court of law, there are many ways that lawyers can adapt their presentations to address mil-lennials’ expectations.

Demonstrative exhibits need not be sim-ply static collections of charts and graphs. Interactive animations and power-points with lots of motion and pop-ups are more engaging and memorable for those whose daily lives are recorded and annotated on social media than solely oral testimony or even the most moving and compelling legal argument. Millennials navigate the world by clicking around screens and accessing links, and evidence presented in a similar fashion will seem more logical and persua-sive to them. Lawyers versed in such tech-nology will also seem more professional. For a generation accustomed to actively navi-gating through a story using the latest tech nology, a lawyer standing in front of them and telling a story may seem strange and old-fashioned, one that they would be un-able to relate to or believe.

As more and more millennials appear for jury duty it will become increasingly im-portant to understand how they think and process information. Persuading such ju-rors may well require new strategies that employ the latest tech nologies and recog-nize the divided attention spans of jurors raised in an online world. But how differ-ent can they really be? After all, they are the children of my generation—one raised largely in front of the television. Our parents learned how to get our attention, and we’ll learn how to get theirs.

Talkin’ Bout Their Generation…By Julia Munley

Julia Munley is a partner in Munley Law, Scranton, Pennsylvania, and represents clients in personal injury and worker’s compensa-tion cases. Ms. Munley is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy. She is a member of the American Association for Justice, the Pennsylvania Association for Justice, and the Pennsylvania Bar Association.

Julia k. MunleyMunley Law Scranton, [email protected]

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Currently, so much of liti-gation is now electronic, beginning with the filing

of the lawsuit. There is now a wave of e-filing that is sweep-ing the country, and soon a paper filing of a petition at the courthouse will be an activity of the past. If you think about it, much of the practical aspects of lit-igation have already become electron-ic; there’s e-filing, e-Discovery, videotaped depositions, and even the visuals at trial are electronic. Litigation is already “e-Liti-gation.” Are you ready for this change? As lawyers we have to be.

Few of us may be aware that the American Bar Association has adopted changes in the ethics rules to deal with the issues raised in the practice of law; apparently the American Bar Association realizes that preparing for the inevitable is a requirement. In August of 2012, the American Bar Association House of Delegates adopted recommendations by the ABA Commission on Ethics 20/20. The offi-cial comment to Rule 1.1: Competence has been amended and now reads:

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, includ-ing the benefits and risks associated with relevant tech nology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Litigation usually involves information that is electronically stored, such as email, word processing, Facebook, Twitter, videotapes etc. Information that is stored electronical-ly is known as “Electronically Stored Infor-mation” or “ESI.” This is in sharp contrast to just a few years ago when most evidence for a lawsuit was on paper, in a diary, or stored in a folder or in a file cabinet. In the past, the sharing of evidence meant that you went to the copy machine and made a copy of ev-erything—not so anymore. Now, the collect-ing, culling, copying, and production of elec-tronic information can be very, VERY costly, especially when emails are involved.

The lines separating our pro-fessional, personal, and pri-vate lives are blurred now more than ever. Accord-ing to a recent poll, 85% of the world communicates by email while 62% of the

world communicates by so-cial networking. One only has

to listen to the morning news to know that emails and tweets bom-

bard the airwaves. Why is this important? Well, when individuals or businesses are in-volved in a legal dispute, it can be said that they will soon be involved in e-Litigation, or electronic litigation. Since most of the time people are communicating electronical-ly, there is a potential blending of personal and professional communication. The “sift-ing out” of the professional communication when one is involved in a personal litigation may be just one of the aspects of the litigation that can be problematic and very expensive.

The Federal Rules of Civil Procedure relating to ESI changed several years ago and now most of the individual State Rules of Civil Procedure involving ESI have been enacted. One of the greatest challenges of ESI in litigation is the cost. It is wise in your case analysis to consid-er the burden and cost of ESI and e-Litigation. At the very least, the initial review of the case should involve an evaluation of the location of the electronic information and its accessi-bility—especially if the retrieval could be cost prohibitive. Consider the following items to be addressed:

1. Is your client using email or social media at home, while at work, in both locales?

2. Have you created a data map of all your

clients’ data? Are you familiar with a data map?

3. Have you reviewed your clients’ elec-tronic data?

4. Have you consulted with a vendor to evaluate the cost of an attorney review?

5. Do your clients routinely back up their electronic data and where is it stored?

6. Have you informed your client to pre-serve all electronic data even before the litigation is filed?

7. Are you preserving the information that you may be required to share in a lawsuit without incurring an enormous cost?

8. Have you sent a preservation letter to opposing counsel? Even before you have filed suit?

9. Does the opposing party have a Docu-ment Retention Policy or Backup Data Policy in place for the employee’s use of email and other electronic activity?

10. Have you instructed your client to stop deleting important electronic informa-tion, such as emails?

If any of the above language appears to be foreign, it’s time for you to increase your ESI knowledge.

How to Prepare for e-Litigation

Preparing for the inevitable new knowledge in tech nology that is ESI and e-Litigation is now a necessity. Lawyers must keep abreast of this information because most of the ev-idence in litigation is stored electronically. There are numerous resources available that will enable attorneys to increase their knowledge of ESI and advise clients about the potential costs involved in the litigation.Should you need assistance while you are increasing your ESI knowledge base, seek guidance from a lawyer proficient in ESI and e-Litigation who will be able to help you pre-pare for your future legal practice.

Are You Ready for e-Litigation?By Donna Marie De simone

Donna De Simone is a member of the Sedona Conference and practices in the area of Medical Malpractice & E-Discovery at Riggs Abney Neal Turpen Orbison & Lewis in Tulsa, Oklahoma. Ms. De Simone is a proud past recipient of the 1998 Elaine Osborne Jacobson Award For Women in HealthCare Law given by the Roscoe Pound Foundation.

donna de SimoneRiggs, Abney, Neal, Turpen, Orbison & Lewis Tulsa, [email protected]


WTLC ExEcutivE committEELori E. AndrusChairAndrus Anderson LLP155 Montgomery St., 9th Fl. San Francisco, CA 94104 [email protected]

rebecca LangstonChair-Elect Langston & Langston 201 N. President St. Jackson, MS [email protected] www.langstonlawyers.com

vicki r. SlaterFirst Vice Chair Attorney at Law, PA 1554 Lakeside Dr. Jackson, MS 39216 [email protected]

A.J. de bartolomeoSecond Vice Chair Girard Gibbs LLP 601 California St., Ste. 1400 San Francisco, CA 94108 [email protected] www.girardgibbs.com

Marion k. MunleySecretary Munley LawForum Plaza227 Penn Ave.Scranton, PA [email protected] www.munley.com

Lauren barnesImmediate Past Chair Hagens Berman Sobol Shapiro 55 Cambridge Pkwy., Ste. 301 Cambridge, MA 02142 [email protected]

Maria S. diamondRepresentative to AAJ Executive Committee DiamondMassong, PLLC1411 Fourth Ave., Ste. 765Seattle, WA [email protected]

Jennie Lee AndersonRepresentative to AAJ Board of Governors Andrus Anderson, LLP155 Montgomery St., 9th Fl.San Francisco, CA [email protected] www.andrusanderson.com

betty MorganRepresentative to AAJ Board of Governors The Morgan Law Firm P.C.260 Peachtree St., Ste. 1601Atlanta, GA [email protected]

Elise AlpertRepresentative to AAJ Board of Governors Gurfein Douglas LLP11 Park Place, #1100New York, NY [email protected]

vanessa cantleyRepresentative to AAJ Board of Governors Bahe Cook Cantley & Nefzger, PLCMarion E. Taylor Bldg.312 S. Fourth St. 6th Fl.Louisville, KY [email protected]

This newsletter is intended to be a forum of opinion and information pertaining to the interest of caucus members. Unless specifically stated otherwise, its contents reflect the views of authors only, and should not be interpreted as a statement of the position or policies of AAJ or the caucus itself. Published material remains the property of AAJ. No material may be reproduced or used out of context without prior approval of, and proper credit to, this newsletter. The sponsor, Tate Law Group, LLC, has no control over the placement of information or the editorial content of this newsletter. ©2013, American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®). All rights reserved.

This newsletter is intended to be a forum of opinion and information pertaining to the interest of caucus members. Unless specifically stated otherwise, its contents reflect the views of authors only, and should not be interpreted as a statement of the position or policies of AAJ or the caucus itself. Published material remains the property of AAJ. No material may be reproduced or used out of context without prior approval of, and proper credit to, this newsletter. The sponsor, Tate Law Group, LLC, has no control over the placement of information or the editorial content of this newsletter. ©2013, American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®). All rights reserved.

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