MODL Quarterly Report A Publication of the Missouri Organization of Defense Lawyers Summer, 2013 2012-2013 MODL Board of Directors MODL President’s Message President Robert J. Buckley s Columbia, MO Vice President Steven F. Coronado s Kansas City, MO Secretary John S. Farmer s St. Louis, MO Treasurer Scott E. Bellm s Springfield, MO Board of Directors Jennifer A. Baumann s St. Louis, MO Kenneth W. Bean s St. Louis, MO Jeffrey H. Blaylock s Columbia, MO Jenny Brown s Kansas City, MO Stephen M. Buckley s St. Louis, MO Wm. Clayton (Clay) Crawford s KC, MO Mariam W. Decker s Columbia, MO S. Jay Dobbs s St. Louis, MO Mimi Elizabeth Doherty s Kansas City, MO David P. Ellington s St. Louis, MO Dana Frese s Jefferson City, MO Kurt Hentz s St. Louis, MO Tiffany D. Hogan s Kansas City, MO Timothy Lavin s Kansas City, MO Louis (Lou) J. Leonatti s Mexico, MO Emily Little s Columbia, MO Michael D. Murphy s Cape Girardeau, MO Donald O’Keefe s St. Louis, MO Theresa Otto s Kansas City, MO Elizabeth Raines s Kansas City, MO Jason Scott s Kansas City, MO Elizabeth H. Weber s Columbia, MO Gary J. Willnauer s Kansas City, MO Richard (Rick) Wuestling s St. Louis, MO Tracy L. Zuckett s St. Louis, MO DRI Representative Gay L. Tedder s Kansas City, MO Executive Director Randy J. Scherr 101 East High St.- Ste. 200 P.O. Box 1072 Jefferson City, MO 65102 573-636-6100 FAX 573-636-9749 [email protected] Robert J. Buckley, MODL President Oliver Walker Wilson LLC s Columbia, MO I recently attended DRI's Mid Region Meeting in Kansas City hosted by the Kansas Association of Defense Counsel. The attendees were representatives of civil defense organizations within a six state region. The primary focus of the meeting was to discuss and share ways that we could improve our respective defense organizations. One of the common challenges expressed by those in attendance was how best our defense organizations can communicate the "value" that membership provides. As my term as MODL's 28th President comes to end, I cannot help but reflect back on my 17 years with this great Organization to consider how, for me both personally and professionally, to answer that question. I was first introduced to MODL my second year of practice through attending the MODL Trial Academy, then held at the Lodge of the Four Seasons at the Lake. Taught by some of the best trial attorneys in this state, I learned more about trying a lawsuit during those three days then I did during three years of law school. Not only was it great instruction, but it allowed me time to interact and make connections with fellow students and the faculty alike. I am a better trial attorney for having attended MODL's Trial Academy. Our Annual Meeting is another obvious benefit of membership. In what has evolved into a terrific family weekend. The Annual Meeting offers first rate continuing legal education as well as a perfect opportunity to meet and forge lasting relationships with lawyers and judges and their families from every corner of this State. The great work of our the many MODL committees provides countless benefits to our members. Currently MODL's Legislative Committee is working with our professional lobbyist in supporting, opposing, and tracking various legislation that greatly impacts our profession and the clients we represent. MODL's Amicus Committee, which in the past two months has filed two amicus briefs in cases “President’s Message” >p2 President’s Message (from page 1) before the Missouri Supreme Court, provides a respected and persuasive voice on legal issues that impacts our clients and our practice — in addition to providing a needed counterperspective to the plaintiffs’ bar. But as I reflect on the countless benefits that I have received through my years as a MODL member, clearly the most valuable for me has been the many wonderful people I have been fortunate to meet and work with, as well as the many friendships that have developed from those connections. The relationships that have been forged with so many in the Organization have enriched me both personally and professionally so much more than I could have ever known. So whether young lawyer or old, I encourage you to get involved and stay involved with MODL. Attend our Annual Meeting. Join and become active in one of the many committees. Serve on the Board of Directors. Just get involved! If you do, not only will the Organization be better for it, but I assure you that so will you. It has been an honor to serve as the President of MODL and pleasure to have served with such great people. There are far too many people to list whom I need to thank for all of their contributions. I look forward to seeing all of you at our Annual Meeting and my continued involvement with this great Organization. In-House Counsel Update by Tim Lavin, Regional Managing Attorney, American Family Mutual Insurance Company You probably work with in-house staff counsel at a number of companies with offices located around the state of Missouri, who could benefit from joining MODL and whose association with MODL could benefit our organization. Our interests are often aligned. For example, as Dana Frese pointed out in a recent issue of the Quarterly Report, through membership in MODL, corporate counsel could be better informed concerning our efforts to promote qualified candidates for election as members of the Appellate Judicial Commission and county nonpartisan court plans. The MODL Board of Directors actively attempts to identify and support candidates to these positions who will best represent our interests. Yet, without better turnout from the defense and corporate bar, our ability to prevail in these elections is relatively ineffective. Past election results indicate that corporate counsel is an untapped resource, whose involvement is necessary for our candidates to these positions to be successful. We need corporate counsel in Missouri to be engaged in the process and cast their votes. Whether they are directly involved in representing defendants in law suits or supervise that litigation, inhouse counsel could benefit from the networking, camaraderie, and information that we share at luncheons around the state, at our Annual Meetings, through the Quarterly Report, and through our newly organized List Serv. Likewise, their participation in those things can only help our organization grown and strengthen as well. So let me use this opportunity to, once again, request that you encourage corporate counsel with whom you are acquainted to consider becoming a MODL member and explain some of the benefits that MODL membership can provide for them. Please refer the names of prospective corporate counsel members to me or to Dana so that we can contact them by letter, invite their application for membership, and provide more information concerning the benefits of MODL. Thank you for promoting MODL! Tim Lavin Regional Managing Attorney American Family Mutual Insurance Company (816) 353-8250 ext. 59254 [email protected] MODL Quarterly Report The MODL Quarterly Report is a publication of the Missouri Organization of Defense Lawyers. If you have any comments or questions, please contact either of our editor: Jennifer A. Baumann Thompson Coburn LLP Em: [email protected] ~2~ From the Capitol by Randy Scherr MODL Executive Director; Jefferson City, MO The First Regular Session of the 97th General Assembly closed May 17th after a number of high profile pieces of legislation of interest to the civil defense bar were considered. After nearly five years, the Second Injury Fund fix has passed. Senate Bill 1 contains many provisions but the basic premise is to recapitalize the Second Injury Fund by increasing the surcharge and also reduce exposure for the state by eliminating and reigning in the ability of workers to make claims against the fund. The current balance in the Second Injury Fund is approximately $9 million, but the fund owes more than $32 million to injured workers. This has caused Attorney General Chris Koster to delay payments in pending cases. the Governor. This year’s bill, House Bill 320, did not pass; however, on the last day it was brought up with significant additions that would also make sexual orientation a protected class. With this addition, it passed the Senate but did not get brought up on the Senate floor. Below is a list of bills that passed this session with a brief synopsis of the portions relevant to defense attorneys and their clients. • Increases court reporter fees. SB 28 HB 339 • This bill revises the definition of "misconduct" as it relates to employee disqualification from unemployment benefits. HB 374 A major priority of the medical community, insurers, and the civil defense bar was a remedy to the Supreme Court decision in the Watts case. This ruling removed the caps on non-economic damages in medical malpractice cases. While this issue passed the House and received significant floor time in the Senate, it ultimately was not brought to a vote. • The Supreme Court must, by January 1, 2015, recommend the guidelines appropriate for use by the General Assembly in determining (1) the need for additional judicial personnel or the reallocation of existing personnel, and (2) recommend appropriate guidelines for the evaluation of judicial performance including a judicial weighted workload model and a clerical weighted workload model. When the Office of the State Courts Administrator indicates an annual weighted workload model for three consecutive years or more, which shows the need for four or more full-time judicial positions in any judicial circuit having a population of 100,000 or more, there must be one additional associate circuit judge position in the circuit for every four full-time judicial positions needed. In previous years attempts to change Missouri’s standard for Human Rights cases have passed, but were vetoed by • Beginning in 2020, and every 20 years thereafter, within the first 10 days of the regular legislative With the legislation passed, it is hoped that increased surcharge can move the pending cases forward and make the fund solvent for the future. In addition, Senate Bill 1 makes it clear that occupational diseases are exclusively covered under workers’ compensation laws as well as creating enhanced benefits for workers who have certain occupation diseases including asbestosis and mesothelioma. session, this bill requires the judicial conference of the state of Missouri to submit to both houses of the General Assembly a circuit realignment plan for the alteration of the geographical boundaries and territorial jurisdiction of the circuit courts subject to the requirements in Article V of the Missouri Constitution. ~3~ • This bill prohibits (1) an uninsured driver who is the owner of the vehicle or (2) a driver operating a vehicle with or without permission and who is uninsured, from collecting noneconomic damages in a civil action against an insured motorist alleged to be at fault for an accident. HB 650 • In an attempt to shield Doe Run, a large lead smelter in southeast Missouri, from lawsuits the legislature passed a measure that specifies that in all civil actions involving claims arising from the ownership or control of underground hard rock mining that ceased operations prior to January 1, 1975, the person or entity must be exempt from punitive or exemplary damages to all claims related in any way to the ownership or control of the sites as long as the person or entity has made or is making a good faith effort to remediate the sites. The Governor has made strong indications that he will veto this bill because of this provision. The Governor has until July 14th to sign or veto legislation on his desk. J L O 2013 John L. Oliver, Jr. Trial Academy by Elizabeth Weber Rogers, Ehrhardt, Weber, & Howard, L.L.C.; Columbia, MO The John L. Oliver, Jr. MODL Trial Academy was held the last week of March, 2013, at the University of Missouri – Columbia School of Law. This year twenty-two students attended, along with another exemplary faculty of experienced defense lawyers. Students again focused on a problem prepared by the National Institute of Trial Advocacy alleging sexual discrimination and a hostile work environment at a law firm. The “plaintiff” was a female associate in the firm, while the “defendants” were the law firm and the male partner who committed the alleged acts. The Academy continued the practice of using jury selection experts from Litigation Insights to recruit a jury panel from the Boone County area for a live voir dire demonstration. Eight venirepersons participated in the voir dire, with questioning presented by lawyers representing both the plaintiff and the defense. Throughout the three-day Academy, selected faculty members participated in demonstrations of other components of a jury trial to all Academy attendees. Trial Academy students were broken into groups that rotated among the faculty members. Each student prepared an opening statement, direct examination, cross examination and closing argument for presentation during the break-out sessions. At the end of each session, faculty provided feedback and answered questions about each component of trial. Several faculty members have commented that this year’s class was particularly well prepared and skilled in their presentations. One new feature this year was the use of law students as volunteer witnesses. The students put a great deal of preparation into learning their witness roles and were then able to watch and learn during the remainder of the presentations. Many thanks to the Law School, the law student witnesses, and to Darrell Jaeger for his videotaping services. Thanks also go out to Plaintiff lawyer Amy Gunn from St. Louis for her second year of serving as faculty for the Academy. Her insight from the other side of the aisle was excellent and greatly appreciated by all. Judicial Luncheon Update by Clay Crawford Foland, Wickens, Eisfelder, Roper & Hofer P.C.; Kansas City, MO Our Spring Judicial Luncheons were a big success in 2013. The Kansas City luncheon featured Hon. Marco Roldan, our newly elected Presiding Judge for the 16th Judicial Circuit. More than fifty members attended the lunch and CLE presented by Judge Roldan. We were pleased to be able to provide our members with interesting and entertaining continuing education credit and a great lunch at the historic Kansas City Club. In St. Louis, former Chief Justice of the Supreme Court of Missouri Ray Price was the featured speaker. More than sixty attendees received valuable insights and CLE credit from one of Missouri’s most respected and well-liked jurists. ~4~ Judge Price has joined member firm Armstrong Teasdale to continue his distinguished legal career. Our semi-annual judicial luncheons afford MODL members a great networking opportunity, a nice meal and CLE credit at a bargain price, all while benefiting from the sage advice of Missouri’s leading state and federal judges. Together, the Kansas City and St. Louis luncheons generated nearly $5,000 in revenue for MODL, while providing a valuable service for our members. We urge all of our member firms to encourage their attorneys to attend our luncheons around the state. Watch the Quarterly Report and email alerts for more details. An Interview with Bernard C. Brinker by Michael D. Murphy Osburn, Hine, Yates & Murphy, LLC; Cape Girardeau, MO Bernard C. Brinker received his law degree from Washington University in St. Louis in 1955. In 1956, Mr. Brinker started a small insurance defense firm in Clayton, Missouri with two other lawyers. Today, Brinker & Doyen, L.L.P. is a second generation defense firm with over 20 lawyers. Despite its many successes, the firm remains literally and figuratively a family business. For most of the firm’s partners, Brinker & Doyen, L.L.P. is the only firm that they have been associated with while in private practice. Individually, Mr. Brinker has been AV rated by Martindale-Hubbell for over 30 years. He is a Fellow of the American College of Trial Lawyers. And he is a former recipient of the Lon O. Hocker Memorial Trial Lawyer Award, which is Missouri’s most prestigious trial lawyer award. Mr. Brinker has engaged in all types of litigation, tried hundreds of cases, and settled countless more. Most recently, Mr. Brinker has focused his practice on mediation, having now mediated several hundred cases. Mr. Murphy: Mr. Brinker, thank you for taking the time to visit today. Let’s start out by talking about your background prior to law school — where did you grow up, and what, if anything, about your upbringing do you think helped lead to your ultimate success as a trial lawyer? Mr. Brinker: I grew up in south St. Louis. Before attending Washington University, I worked in my parents’ grocery store doing anything and everything that needed to be done in the operation of a family business. That experience, as unrelated to law as it was, taught me the importance of hard work, and the importance of developing relationships with others, i.e., customers, vendors, employees, etc., that required me to be, not only friendly, but convincing, effective, and to a degree persuasive. This is not unlike the relationships that an attorney must develop with clients and jurors. Mr. Murphy: When did you know that you wanted to become a lawyer? ~5~ Mr. Brinker: I wanted to be a lawyer as long as I can remember. My parents told me I first said I wanted to be a lawyer when I was in 4th grade, long before I knew what a lawyer did. How I first got that idea, I have no idea, but having that interest early, I was always interested in learning and hearing about lawyers. When my parents met with an attorney, I went along. The more I learned, the more intent I was to become a lawyer. Mr. Murphy: Tell us about your early years in the practice, and about the formation of the firm that we know today as Brinker & Doyen, L.L.P. Mr. Brinker: After law school, I first practiced with a firm in the City of St. Louis. I was given an assignment of what was an unlikely case to win. That was a case pending in the United States District Court in Jefferson City, and was my first trial. Either the jury liked me, or perhaps felt a degree of sympathy in view of my obvious inexperience, maybe both. Anyway, to everyone’s surprise, I received a favorable verdict. Shortly thereafter, the attorney I had beaten, who was a well-known and capable trial lawyer, recommended me to a friend of his, Lee M. Carter, who was moving his office to Clayton, Missouri, and was looking for a young associate. I was hired by Mr. Carter, and that began the defense firm that eventually became Brinker & Doyen. Mr. Murphy: Is there anything about your upbringing or your education that, as you look back, stands out particularly as having prepared you for a career in the courtroom? Mr. Brinker: In addition to the comments that I made in response to your first question, I was fortunate to have attended Washington University Law School. My freshman class had 74 students, which at the time was considered a large class. We graduated 33. The result was small classes, close relationships with faculty and fellow students, and an excellent legal education. “An Interview ...” >p5 An Interview ... (from page 4) Mr. Murphy: I am interested in your thoughts on how the practice of law has changed through the years — will you walk us through your career, and the changes that you have seen? “Be prepared. Be honest in the presentation. And never exaggerate.” Mr. Brinker: The law, particularly my specialty civil trial practice, has seen tremendous changes. There were four circuit judges in St. Louis County when I started my practice, although there were soon six. Now there are 46. The subject matter of litigation has become more complex. It was primarily automobile litigation and premises liability when I started. Cases that usually could be tried in 1½ to 2 days. Then came product liability cases. I believe our firm tried one of the first product liability cases that resulted in an appellate court opinion. I practiced several years before medical malpractice cases became common. Today we see more cases, more attorneys, and more judges, but fewer trials. For the past few years, only 1% of civil cases are tried to a conclusion. There is no question that mediation is responsible for some increase in settlements, but plaintiffs and defendants alike seem inclined to prefer settlement to trial. Mr. Murphy: This is a really broad question — but it’s intended that way — what in your experience are the keys to being effective in the courtroom? Mr. Brinker: This is difficult to answer, but I believe my actual experience has a lot to do with my effectiveness. I often tried several cases a week. Sometimes, I tried as many as three cases in a week — one in civil court and two in magistrate court, or vice versa. I often tried more cases in one month than lawyers try in one year today. Mr. Murphy: Do you have any thoughts, in general, about the state-of-the-art in terms of trial work today? Mr. Brinker: There are some excellent trial lawyers today. The concern I have is for the future. With fewer trials, there will be fewer experienced trial lawyers. Mr. Murphy: You’ve obviously had a lot of great moments at trial. What was the ~6~ worst moment you’ve experienced at trial? Mr. Brinker: My worst experience was when my client altered records, and denied to me that he had altered them, and denied the alteration in open court. Plaintiff’s attorney had copies of the records before and after they were altered. The case was settled after a recess. Mr. Murphy: If a young lawyer came to you today and asked you what you consider the keys to success in the courtroom, what would you say? Mr. Brinker: Be prepared. Be honest in the presentation. And never exaggerate. The rest is probably personality and there is little that can be done to change that. Mr. Murphy: I always like to talk about professionalism in our profession — how has the practice of law changed, specifically in terms of professionalism, through the years? Mr. Brinker: Does this mean professionalism in relation to the public, clients, courts, and/or attorneys? Most advertising is embarrassing to the profession. I do think that lawyers are a little more couth in dealing with each other today than they were in prior years. That probably is a result of the emphasis that the Bar has placed on professional ethics. Mr. Murphy: In your experience, do Rambo-type litigators get better results for their clients? Why not? Mr. Brinker: No. Jurors are too savvy. When I first began practicing, some of the older and very successful attorneys would scream and yell in the courtroom, and often quoted the Bible. They would yell at the jury, at the judge, and at each other. I remember one occasion where two particularly loud lawyers were trying a lawsuit, and some of us went down to the floor below in the old federal courthouse to see if we could hear them. Sure enough, we could. Today, I believe the jurors would laugh at those tactics. Mr. Murphy: What’s the funniest thing that’s ever happened to you in the courtroom? “An Interview ...” >p6 An Interview ... (from page 5) Mr. Brinker: On the first day of the second week of a two-week trial, the attorney questioning his expert witness had a slip of the tongue, and said a word he did not intend to say. The jurors, attorneys, judge, and visitors all laughed heartily. The lawyer did not know what he said, and went back to the counsel table and asked his secretary what he had said. When he was told, he laughed and all present laughed again. The atmosphere changed dramatically. “Lessons are learned in every case.” It had been a very serious trial with serious injuries, but thereafter no one, especially the jury, was serious about anything. Almost everything was laughable to the jury. A slip of the tongue cost the attorney and his client, who lost the case. After the verdict, when the jurors were asked about the case, they only wanted to discuss the slip of the tongue. I use this as an example in mediation when people tell me that they know what is going to happen at trial. Things always happen at trial that you are not prepared for. Mr. Murphy: I heard a story once about you using your son Jeff’s toy wagon to bring an engine into a federal courtroom — tell us about that. Mr. Brinker: This was a products liability case. A helicopter crashed, and we represented the manufacturer of the helicopter. The claim was based on an alleged error in construction of the transmission. We had the transmission constructed in the courtroom to show that it was impossible to construct it the way the plaintiff claimed. It would have been like putting a square piece in a round hole. What better way to haul in the parts than in a toy wagon? Also, our witnesses re-built the transmission on the wagon. I will always remember that case. Among other things, it was in federal court and it was the judge’s first jury trial. Mr. Murphy: What case that handled are you most proud of? you Mr. Brinker: I never thought of a case, trial, or settlement in terms of pride. Every ~7~ case, trial, or settlement was considered in terms of better or worse than expected. Lessons are learned in every case. This is why actual trial experience is so important. Ultimately, satisfaction is measured in terms of whether the client is satisfied with the result. Mr. Murphy: Tell us what you enjoy doing outside the practice of law. Mr. Brinker: Playing with and being with my five and eight year old granddaughters. I am also studying and relearning long division and negative numbers, in order to keep up with them. Also, I love to read. I enjoy doing research on my ancestors. And I am currently taking two courses, each two hours a week, at the Lifelong Learning Institute at Washington University. Mr. Murphy: If a young person came to you today and told you that he or she wanted to be a trial lawyer, and asked you for recommendations on what they could do to prepare themselves to be successful in this profession, what advice would you give them? Mr. Brinker: I would tell them that law is a good profession, but at present it is difficult to get experience as a trial lawyer. I would suggest looking at other areas of the law. In all candor, it is difficult for young lawyers to get employment. It is even more difficult to tell a prospective employer that his or her goal is to be a “trial lawyer.” The prospective employer probably already has several young partners or associates trying to get the experience needed to be an accomplished trial lawyer. Mr. Murphy: Can you talk briefly about why active participation in professional organizations like the Missouri Organization of Defense Lawyers is important? Mr. Brinker: It is important because of the value of exchanging information about law, courts, attorneys, etc., with fellow defense lawyers. There is really no other way to get such valuable information. e
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