Newsletter

Published Quarterly By The Defense Trial Counsel of West Virginia Spring 2010

President’s Column Highlights By Lee Murray Hall

Howard Zinn writes that an optimist is a person who embraces

the fact that the future is uncertain. The practice of law in West Virginia is filled with uncertainty, which tends to have a paralytic effect on many, if not most, defense attorneys. We see change in the growth of regional

firms, the emergence of more boutique firms, the rebirth of the solo practitioner, new forms of mass litigation, increased appellate practice, Employment Law and a dynamic 2012 Supreme Court race. How do we translate the pa- Update ralysis that so often accompanies uncertainty into optimism? The optimism, teaches Zinn, lies in the promise that we can shape and design the future. DTCWV offers many opportunities to play a role Cross Examination in shaping defense practice in West Virginia. Are you interested in studying and commenting on West Virginia’s new appellate rules? DTCWV has formed a committee to dissect, com- pare and comment on the proposed rules and encourages you to join in our discussion. Would DRI Update you like to play a role in shaping jurisprudence at an appellate level? Call Jeff Holmstrand and help him draft an amicus brief on behalf of the Amicus Committee. Do you want to be the first to know about informational letters from our Insurance Commissioner? Join the In- Insurance Law Update surance Committee and you will receive an email about developments and rulings within the day, and sometimes within the hour, of their issuance. And perhaps no group takes as ener- getic a role in shaping our future as Erin Stankewicz and the Young Lawyers Committee. If ADA Amendments Act their energy is a barometer of their optimism, the future is very bright. Another bright spot is the record turnout at the Defense Trial Counsel Annual Meet- Tech Tip ing. Oglebay proved a terrific venue with lots of activities, but still plenty of opportunities to socialize (always a DTCWV priority). Our speakers were entertaining and informative. Our very own Steve Crislip talked with us about practical ethics from his perspective as general Young Lawyer Update counsel of Jackson Kelly, PLLC. Steve and I worked together on a bizarre legal professional case 16 years ago and I recall him saying then, “an attorney who is afraid to ask for help will do no end of harm.” This is just another reason to become active in DTCWV. Our substan- Calendar tive committees serve as a ready helpline. Where else can you find a group of people inter- ested in and ready to discuss your legal issues in your substantive area all the time?

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President’s Column - cont’d.

Speaker Stephen Morrison was a stroke of serendipity. Thank you to Marc Williams and Bob Massie for helping secure him as a last minute replacement. Morrison made me rethink my lifelong aversion to poetry as he taught us how to arm the “for you” juror with the facts they need to argue the case to the rest of the panel because “jurors like their own arguments best.” Geoffrey Oberhaus from Dinsmore & Shohl, LLP taught us that social media is the “go to” tool for most in-house counsel, which can be a good thing – or not so good….. We closed the program with a legend – a man whose Trial Notebook articles in Litigation Magazine have guided us through every aspect of trial practice for 35 years. We are so glad that we could offer a new generation of attorneys the opportu- nity see James McElhaney. We thank David Wyant, our past President, and Peggy Schultz for their excellent work in planning and executing a seam- less annual meeting. Dave Wyant has stepped down as the 28th president of DTCWV. His quiet leadership has earned the respect and admiration of the Board for ten years. We will build on his progress and look forward to his continued involvement as we grow our organization. We will also miss Lucien Lewin and Don Parker and as they rotate off of the Board. We thank them for their ser- vice and hope to see them return to the Board in the future. We have an active and expanding group of leaders as we welcome Teresa Dumire, Susan Snowden, and Mark Hayes to the Board. In addition, we are thrilled that Laurie Barbe has agreed to serve as secretary to the organization, making our current officers Gerry Stowers as Vice President, Mike Cimino as Treasurer, and Laurie Barbe as Secretary. I am honored to serve as the President for the 2010-2011 year. At the DTCWV Board meeting last week, we heard reports from our substantive committee chairs and look forward to their leadership in their committees. Rachel Moore, Brian Moore, Charlotte Hoffman Norris, Bernard Vallejos, Eric Hulett, Gerry Stowers and Jill McIntyre all gave detailed reports of their committee’s activities. We thank them for their attendance and involve- ment. I thank you for the opportunity to serve this organization and encourage you to join a committee, write an article, tell us about a victory, or let us learn from your defeat. We look forward to working with you as we shape a bright future for West Virginia attorneys and clients.

Sincerely, Lee M. Hall Lee Murray Hall President

Employment Law Update By Brian Moore, Dinsmore & Shohl, LLP

The Employment Law Committee held its Spring meeting on April 15, 2010. Members attending in person and by video or telephone conference enjoyed a CLE program presented by members Susan Snowden and Carolyn Wade. Ms. Snowden presented on the Worker Adjustment Retraining Notification Act (WARN) and Ms. Wade presented a legislative update. Several committee members attended the DTCWV Annual Meeting at Oglebay. The Committee is a great way to interact with your fellow employment law practitioners. If you would like to become a member of the committee, please send an e-mail to our new Chairperson Charlotte Hoffman Norris at [email protected].. I am sure that Charlotte will continue to lead the group through an active and beneficial year.

P. O. Box 527, Charleston, WV 25322-0527 304-344-1611 304-344-4711 fax www.dtcwv.org Editor: Robert L. Massie Publisher: Peggy L. Schultz

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Cross Examination of An Expert Witness - From a Defense Perspective By Gerard R. Stowers, Bowles Rice McDavid Graff & Love LLP

From a defense perspective, the techniques and tips listed below may assist you in avoiding some of the common mistakes made by attorneys in cross-examining expert witnesses. While there is “some” dif- ference in how “defense” lawyers may conduct such an examination, as contrasted with a “plaintiff’s lawyer,” the difference is largely dependent upon: (1) personal preference, (2) style; and, (3) the circumstances of the individual case. As a general matter, a plaintiff’s lawyer may be expected to be more aggressive in the cross-examination than a defense lawyer, but hazards remain for any lawyer who is too aggressive with any witness, including ex- perts.

 Always Proceed With Caution Proceed with caution regarding the cross-examination of any expert. The expert is probably operating within his/her substantive field of expertise, while you are not. You are an expert in “cross-examination,” not the subject matter of the testimony. Therefore the “techniques” of “cross-examination” are your trump card, not the “substance” of the testimony.  Ignore Rule Number One Simply because the expert is an expert in a “substantive” area, does not mean that you cannot become knowledgeable about the same subject matter. Whether the case involves a defective product, the appraisal of a piece of property, or the future value of a stream of future earnings, most of the substantive areas we encounter in trials do not involve rocket science. With Enough “preparation” you too can be conversant and knowledgeable about the subject matter.

 Prepare Preparation for your cross-examination should be your number one priority. You simply cannot prepare enough. I know that the economics of every case might limit this preparation. However, this is not to encourage you to take a hundred pages of notes to the lectern at the beginning of the cross, but you should be sufficiently prepared that you speak knowledgeably about the subject matter and the specific opinions that are being advanced by the expert. For example, Newton’s Third Law holds that “every action has a reaction equal in magnitude and opposite in direction.” Ask an accident reconstruction expert some time on cross if he can tell the jury Newton’s Third Law. This is a universal rule of physics. An expert cannot deny it, and you can be safe in stating it in open court, as if you know it to be true as well. It might also help your case.

 Speaking of Notes, Remember the Surgeon Would you be nervous, if right before the anesthesia, the surgeon was reading his notes, or placing the pages of notes about, at the foot of the operating table? While it is true that a surgeon should check his notes or chart before the surgery, during the surgery the surgeon is operating, not reading. You too should be “operating” but not from notes. You should know exactly where you are going with the cross-examination and not take your eyes away from the expert except for effect. Let the expert know, from your absence of notes, that you are prepared and know where you are going.

 Read Irving Younger’s Ten Commandments of Cross-Examination In 1975 Irving Younger recorded his famous set of cassette tapes about the Ten Commandments of Cross-Examination. Younger was a law professor, a judge, a prosecutor, and a defense lawyer. When I started practicing in 1976, I purchased the series of cassette tapes and listened while driving the roads of West Virginia headed for trial. I understood (I thought) everything and every example he used. I tried to make my cross-examinations sound like his. My cross never went so smoothly on any witness. I came close a couple of times, but never duplicated the effort. Over the years I have forgotten a lot of what Professor Younger was trying to say or do. However, what I do remember was one of his quotes, paraphrased, that “cross-examination was like a commando raid.” Go in, blow up the bridge, and get out! I still use that technique and quote. However, I soon realized that to “blow up the bridge” you needed am- munition or explosives. Most cross-examinations fail because the examiner does not have sufficient “ammo.” Ammunition is acquired by preparation, investigation, study, insight, intuition, and opportunity. In the office, I also refer to the ammunition, alternatively as “stuff” or “dark matter.” Dark matter in the Universe, as I am told by ex- perts, cannot be seen or identified, but it is present. It accounts for more than 70% of the total matter in the Universe. It can be sensed. In fact, it is more prevalent than all other types of “matter.” I don’t know how to find dark matter in the Universe, however, when pre- paring a cross-examination I am always in search of the “dark matter” that can be used during cross-examination. You know it when you find it!

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Cross Examination - cont’d.  Irving Younger Was Wrong After you have read or listened to Professor Younger, consider that he is wrong. Once you know why he was wrong, you are on your way to better cross-examinations. Not everything he encouraged was wrong. There are articles available on the internet that argue he was wrong. For example, one of the Commandments was, do not ask “one question too many” and another was “never ask a question unless you already know the answer.” The example that follows involves the defendant being charged with biting off the nose of the victim. The examination goes as follows:

Q. Where were the defendant and the victim when the fight broke out?

A. In the middle of the field.

Q. Where were you?

A. On the edge of the field.

Q. What were you doing?

A. Bird watching.

Q. Where were the birds?

A. In the trees.

Q. Where were the trees?

A. Around the edge of the field.

Q. Were you looking at the birds?

A. Yes.

Q. So your back was to the people fighting?

A. Yes.

Younger says “Stop!” “Sit down.” You can argue in closing that his back was to the fight. He couldn’t see it and you can challenge perception.

But, you don’t know better. So you violate a couple of the commandants and proceed:

Q. If your back was to the fight, how can you say that the defendant bit off the victim’s nose?

A. Well, I saw him spit it out.

As various writers have written, Younger’s premise was essentially to create the illusion or false impression that the witness had not seen the event, and that when you stop the examination, the false impression will remain with the jury.

This misses the point, that the truth will eventually come out—on re-direct—or elsewhere, and you will lose your credibility with the jury because you presented—in your cross, the false impression, that the witness did not have personal knowledge of the facts about which he had previously testified.

As a defense lawyer, your credibility is also on trial. You cannot be providing “false impressions.” You are a “truth giver” to the jury, so expose the “truth” and not a false illusion of the truth. Contrast the Younger example with Lincoln’s famous Almanac cross-examination. You will understand the difference.

 Attack Qualifications Experts come in all shapes, sizes and range of qualifications. Some have said that an expert is anyone from out of town, with a brief case. But is the expert qualified to provide opinions? Before you review the expert’s report, review the expert’s resume or curriculum vita. Is this person a novice who only testified a few times? Is this person a veteran who has testified hundreds of times, and perhaps, on many different subjects? Both have their weaknesses. The novice may know the subject matter but not the courtroom. Holding an opinion to a reasonable degree of certainty may easily be confused with holding an opinion that is only “possible.” We all know the effect of that mistake. A veteran can be characterized as a “paid” witness who will say anything, on any subject, at any time, for a fee. We all know veterans. We call some of these experts, a “jack of all trades.” Even Babe Ruth could not play all the positions.

For example, a safety expert or human factors engineer will try to convince a jury that it makes no difference whether he has been in an underground coal mine before his testimony or not. Humans, after all, are the same above and below ground. Do not let an inexpe- rienced veteran get by with these types of qualifications. When the expert, even a veteran, is outside of the scope of his subject matter, he may know how to talk smoothly in the courtroom, but is vulnerable not only on the lack of expert knowledge, but you may know about the subject of the case than the expert. Take advantage of these opportunities.

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Cross Examination - cont’d.

Has the expert published articles or books in the past? This is always fertile ground for finding points on cross-examination. Does the expert recognize authoritative treatises, may be the treatise written by your own expert. Sometimes the expert may be simply perfect. In that event, do not attack the qualifications or the resume and find another fertile area for cross-examination.

 Expose One-Sided Experts Some experts (despite their best efforts) become, on a de facto basis, either a “plaintiffs” expert or a “defense” expert simply because they end up testifying mostly for plaintiffs or defendants. Approach carefully. Jurors do not necessarily understand this “plaintiffs v. defendants” role that some of us make so much fuss about. However, it can be used in a proper case. Inferences can be drawn from the roles these witnesses play in litigation. The deposition is the key place to determine “bias” or commitment to one side of the case or the other. Neutral experts are rare, but they exist and can be found. Suggestion, if you are planning an attack on the one-sided ex- pert, make sure that your expert is one of the neutral experts.

 Use a Scalpel, Not a Ball Bat Death by a thousand cuts is preferable to a general beating in the eyes of the jury. The jury simply does not enjoy watching an attempt to beat the opposing expert into submission. It is sort of like watching the talking heads on MSNBC or FOX go after each other with interruptions, cutoffs, and talking over each other. You feel uncomfortable watching the scene. A Barrister once told me that the op- posing expert had done nothing personal to harm me, so don’t beat him up in front of the jury. Instead, the Barrister continued, take a scalpel and cut his jugular vein. He won’t hurt you after that.

 Find Your Inner Self and Turn on Your High Beam Radar What does this mean? Cross-examination has been called an “art” as in the “art of cross-examination.” Some writers have said that it is a talent, acquired at birth and developed later in practice. Francis Wellman, in 1948 wrote, in his famous book, “The Art of Cross Examination:”

“A successful cross-examination requires the greatest ingenuity; a habit of logical thought; clearness of perception; infinite patience and self control; power to read men’s mind intuitively, to judge their characters by their faces, to appreciate their motive; the ability to act with force and precision; a masterful knowledge of the subject matter itself; an extreme caution, and, above all, the instinct to discover the weak point in the witness under examination. It involves all shades and complexions of human morals, human passions and human intelligence. It is a mental dual between counsel and witness.”

When you are in the “zone” you know the answer to the question, whether you do or not.

 Structure the Cross-Examination A cross-examination has three parts.

Part I—Make the expert your witness by eliciting factual points in your favor and which are firmly established by the evidence. This is pre-planned and cannot hurt your case unless one or more of the facts or opinions are not firmly established.

Part II—Discredit the unfavorable testimony given by the expert on direct. This is the more spontaneous and more hazardous part of the cross-examination. This is where your radar needs to be on high beam.

Part III—End strong. The “zinger.” The zinger must be clearly admissible, undeniable, and central to your theme and theory.

 The Expert’s Report Almost every expert writes a report. Reports are required by the Federal Rules of Civil Procedure. This is where the “ammo,” “stuff,” and “dark matter” reside. After 34 years of experience I can read an expert report and, within a few minutes, find bullets to load into my gun. Some of these smaller caliber bullets I may fire during the expert’s deposition, but some of the larger bullets I never fire until I am in the courtroom. The grenades I save for blowing up the bridges. I store the bullets and ammo in my ammo belt (referred to by lawyers as a file or notebook). I have one file or notebook for every ex- pert. Every little fact or piece of shrapnel I put into the notebook. I add to it as the case progresses. I get some ammo from my own expert. I get pieces here and there. Some from research. Some from investigation. Some from prior testimony or prior reports. The list goes on. I build the notebook. By the time of trial I may have enough ammo to blow several bridges, or just one, or three. It does- n’t matter. I wade in, carefully, cautiously, under-cover and proceed to blow up as many bridges as is necessary in as short of time as I can. I always proceed quickly, cleverly, and with a sense of entertainment. Juries, as well as movie audiences, love to see bridges blown.

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Cross Examination - cont’d.  Start Your Preparation With Your Theme and Theory The first thing a defense lawyer does in the case (after of course obtaining an extension of time and a retainer) is frame the “theme and theory.” It might change as the case progresses. It probably will as you find evidence and learn the case. But the theme and theory get better and more refined over time. Your expert cross-examination needs to build and support your theme and theory. While you can destroy the opposition’s bridge or elements of proof, you build on your own theme and theory. The difference between theme and theory, is that the theory is the legal route to winning the case, while the theme is the “moral” reason that makes the jury want to return a verdict in your client’s favor. If the plaintiff is a fraud and fake, then he or she probably retained an expert who is also a fraud and fake. If the plaintiff has a weak case, then probably the plaintiff got an expert who will say about anything.

 The Art of Watching and Listening Listen to the witness during direct examination. Watch the witness, read the body language. Don’t be distracted by notes. Listen to the witnesses’ answers during cross. Sometimes you might be anxious about the next question, but be patient, and listen to the answer, carefully. There is more fruit in the answer, than what you have written down on the legal pad. Watch the witnesses’ eyes. As R. Harris wrote in Before and At Trial (1980), “…never take your eye from that of the witness. This is a channel of communication, from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hated, anger, scorn, despair and all the passions—all the soul, is there.” Read Jerry Spence’s writing about seeing the soul of the witness through his eyes. The same is true with experts.

 The Perry Mason Moment Really Does Happen Some of you probably don’t remember Perry Mason. A TV actor, Perry won all of his cases. Often the case didn’t seem to be going well. However, more often than not, a witness confessed to the crime on the stand, usually while under cross-examination by Perry. I told the jury in my first criminal trial that I was not Perry Mason. They all sort of grinned and appreciated the candor. I was 24 years old and the jury already knew that I wasn’t Perry Mason. Can a Perry Mason Moment really happen? Yes. I have seen it. I have done it a few times. It is an amazing thing to experience, and even better, at your own hand. Can you produce a Perry Mason Moment? Of course. With enough trials and experience, and by following these tips, and while watching the soul of the expert though his eyes, then someday it will all come together and yes, you too can experience the Moment! There is nothing better!

References:

Doyen, Michael R., “On Breaking Commandments,” Litigation, Spring 2008, Vol. 34, No. 3

Pratt, Timothy A., “The Ten Commandments of Cross-Examination,” www.thefederation.org/documents/Pratt

Pozner, Larry S., Wood, Roger J., “Cross-Examination: Science and Techniques,” Second Edition, Matthew Bender Company, 2004

McElhaney, James W., “Trial Notebook: Nine Ways to Cross-Examine an Expert,” Litigation, Winter 2005, Vol. 31, No. 2

Panek, Richard, “Probing the Biggest Mystery in the Universe,” Smithsonian, April 2010

Bruno, Kevin J., Vargo, Bruce D., “Suggested Techniques and Advice: The Cross-Examination of an Expert Witness”

“Cross-Examination – The Art and Technique,” Litigation Brown Paper

Message from Executive Director Peggy Schultz

Another very successful Annual Meeting has come to past. We had a record attendance this year with 103 members and 10 non-members. Thanks to each of you who attended. I hope you feel the CLE was valuable and the networking worthy. Mark your calendar for next year’s meeting for May 11 - 13 at Glade Resort and Conference Center. In the meantime, we plan to offer substan- tive lunchtime CLE, the Regional Luncheon and CLE in Huntington on September 1 and the Trial Academy on October 1. Watch the website for more information plus emails and snail mail. The new website has been launched with some work still in progress on the Expert Witness Directory and Submission and the new Verdict/Opinions/Rulings Directory. But, you can now update your own profile and use the new “Find An Attorney” fea- ture. Watch your emails for the instructions on the all the new functions. Keeping up with technology is a challenge for any organization and any law firm. By the time you think you are moving forward with new features on a website, then you find out a few months later the architecture of your site is outdated or a new fea- ture is now better than the old one. Facebook challenges LinkedIn and they both challenge email. Twitter just “twits” in front of all for speed. Who knows what is best but generally, each generation is more comfortable with one over the other. Let’s just hope the messages are the same on all if you use them for marketing. Not sure how I got off onto that tangent. Probably because it always foremost in the daily operations and communications of the organization. Being the almighty Web Master brings continual chal- lenges on the backend operations of the website and the public side brings challenges of keeping it update and fresh. Law firms have the same challenges. Clients or potential clients WILL go to your firm website, if for nothing more than to get a telephone number. Make sure they want to hang around and read about you. Keep it updated with interesting information about your activities and personnel. If you have any suggestions for the DTCWV website functions, please let me know. I would be very remiss if I did not say how great David Wyant was to work with as a President. He is a terrific leader and I will miss his guidance. Lee Hall knows this and has jumped into the role with great enthusiasm and ambition. I am sure it is going to be an action packaged year ahead. Enjoy the summer! Peggy Page 6

DRI Update By Steve Crislip, DRI State Representative, Jackson Kelly PLLC

Working as a defense lawyer, words like “hours”, “budgets”, “new business” and “marketing” are just a way of life these days. At times we have more work than we can get done, but there are always times when you worry whether you will continue to get new business, and then that pesky “marketing” word comes into play. Lots of things go into that concept, but one of the best ways to get business in the defense world is to be a good lawyer and then for that to be known by other lawyers. That is one of the great benefits of mem- bership in the Defense Trial Counsel of West Virginia. Even though we all compete against each other for defense work, we also refer our conflicts to each other. However, in order to look beyond our normal base work we need referrals from outside lawyers who know us. Therein lies the direct benefit of being active in the Defense Research Institute (DRI). It is an organization where you can get active, using your DTCWV membership as a base, and can make many national contacts in your area of expertise very quickly. At a recent state DRI representatives meeting, a mid-30’s general counsel of Louisiana Pacific was present, and a speaker mentioned that she and three or four other young lawyers had built their careers by being active in the Young Lawyers’ Section of DRI. One of the other people the speaker mentioned was one of our West Virginia DTC members. The point being that for a nominal investment of funds (your DRI membership fee), you have access to 28 standing committees in which you can become involved immediately. From there you can make all the contacts you want in your area of law and can build your refer- ral network with minimal work. The rule still applies that you need to do good legal work and others will come to you, but it is really helpful if you are known by others around the country to be someone who does good legal work. Call or email me about an applica- tion and I can explain how you can get started in this very low-budget and effective marketing plan. If nothing else, it will get the people in your firm off your back because You Now Have A Marketing Plan. I am pleased to announce that two young lawyers are now involved in helping me add DRI members in West Virginia. Christi Stover of Steptoe & Johnson in Morgantown (email: [email protected]) will head the Northern Division down to Flatwoods and Jennifer Mankins of Jackson Kelly (email: [email protected]) will head the Southern Division. They can get you signed up and started. Whether a young lawyer or a seasoned vet, you need a network to get referrals to you.

Insurance Law Committee Update By Rachel Moore, Steptoe & Johnson, PLLC

On behalf of the entire membership of the Insurance Law Committee, I commend and thank Marey Casey for her hard work and service as the 2009 chair of the committee. Marey passed the chair position to me at our most recent committee meeting, and I look forward to supporting our committee and building upon Marey’s accomplishments as chair. We are fortunate that Marey will continue to send periodic e-mails providing updates on new developments in insurance law. Our last meeting, held on March 24, 2010, included several presentations on relevant topics, includ- ing a legislative update by Jill Bentz, a presentation by Russ Rucker of Rucker, Billups & Fowler, Inc. regarding the potential development of a Risk Management and Insurance curriculum at the Marshall University Lewis College of Business, and a discussion on recent cases of interest from Jason Foster and me. The meeting also included a dialogue about issues committee members are currently facing in their cases, with several members sharing ideas and thoughts on the issues raised. The next lunch meeting of the Insurance Law Committee will be held on Thursday, July 8, 2010, at noon at the offices of Steptoe & Johnson PLLC, located on the eighth floor of the Chase Tower, 707 Virginia Street, East, in Charleston. There will be an opportunity for members to attend by telephone as well. These meetings continue to be very valuable, so I encourage you to attend on July 8. If you have any questions or would like to join the Insurance Law Committee, please e-mail me at rachel.moore@steptoe- johnson.com. .

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ADA Amendments Act: Coming In Line With West Virginia By Erica Narrish, Jackson Kelly PLLC

Background

The ADA Amendments Act (“ADAAA”) took effect on January 1, 2009, broadening the scope of the ADA and extending protection to many individuals who would otherwise be excluded. This is a summary of the major changes effected by the ADAAA. Definitions

A. “Disability” While the definition of “disability” has not changed, the Amendment clarifies that the Act should be “construed in favor of broad coverage to the maximum extent permitted by the terms of the Act.” 29 C.F.R. § 1630.1(b)(4)(2009). Thus, Congress has explicitly broadened the definition of disability to apply to individuals excluded from the previous version of the Act. B. “Substantially Limits” The ADAAA lessens the standard for “substantially limits” by stating a limitation no longer must involve a significant or severe restriction of a major life activity to be a disability. Instead, a limitation is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most individuals in the general population. 29 C.F.R. § 1630.2(j). C. “Mitigating Measures” “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” 42 U.S.C. § 12102 (4)(E)(i). In other words, “[a]n individual who, because of use of medication or another mitigating measure, has experienced no limitations, or only minor limitations, related to an impairment nevertheless has a disability if the impairment would be substantially limiting without the mitigating measure.” 29 C.F.R. § 1630.2(j)(3)(ii)(E)(iii). D. “Regarded As” To be “regarded as” having an impairment, employers no longer must perceive the employee as substantially limited in a major life activity. Instead, the employee is “regarded as” disabled if the employer took an adverse employment action against the em- ployee because of an actual or perceived physical or mental impairment, or symptoms of such impairment, regardless of whether the impair- ment limits or is perceived to limit a major life activity. 42 U.S.C. § 12102 (3)(A). Thus, the plaintiff no longer has to show that an em- ployer's misperception of the employee's condition was so severe to form a belief that the condition substantially limited a major life activ- ity. However, this section does not apply to impairments that are both transitory and minor, that is, lasting for less than six months. 42 U.S.C. § 12102 (3)(B). Further, employees who meet the definition of being “regarded as disabled” but do not have an actual disability are not entitled to reasonable accommodation. 29 C.F.R. § 1630.3(K)(4). Impact on West Virginia Law In most areas, the ADAAA and the West Virginia Human Rights Act (“WVHRA”) now mirror one another or, at the very least, are designed to have the same impact. Thus, despite the changes ushered in by the ADAAA, the impact on West Virginia law is likely minimal as the WVHRA already requires an expansive interpretation of a “disability” and allows for broad coverage under the Act. The one exception is the application of the “regarded as” prongs of the statutes. Under ADAAA, the employee must be subject to an adverse employment action because of a real or perceived limitation, regardless of whether that limitation was viewed as limiting a major life activity; whereas, under the WVHRA, the employer must perceive the limitation as substantially limiting a major life activity of the employee. Conclusion Through its amendments to the ADA, the thrust of the ADAAA’s impact is to broaden the application of disability cov- erage under the Act to a greater number of employees. While the Amendment does significantly alter the ADA, its impact on West Virginia law is likely to be minimal because the WVHRA already requires a broad interpretation of “disability,” thereby leading courts to regularly find in favor of coverage. Defense Trial Counsel of West Virginia DRI Young Lawyer’s Committee Annual Meeting Presents San Diego, CA

The 2010 Trial Academy October 1 Jackson Kelly Charleston Office October 20 - 24, 2010 All day event Don’t Miss It! Visit www.dri.org Page 8

Tech Tip Windows 7 - Change We Need? By John Meadows, Robinson & McElwee, PLLC

I appreciate this opportunity from DTCWV to follow in Ryan Aaron’s able footsteps and provide this Tech Tip column for the Newsletter. As this is a first column for me and a change for the reader, I thought it apt to discuss the most important recent change in technology that most of you will encounter for 2010 – a transition to Windows 7. For all the Apple or UNIX users out there, you are now welcome to tune out and switch to the next article, although you might find that my musings (I’m a “work with a PC” and “use a Mac at home” kinda guy) will provide some interesting insight into Microsoft’s newest entry and what it means for everyone. I’m typing this on a brand spanking new Lenovo (read IBM) Thinkpad with a clean load of Windows 7 Professional. I don’t want to mince words. As a Mac guy at heart, I’ve watched Microsoft desperately try to emulate, copy, (steal?) the very polished look and feel of the Apple Macintosh. Some attempts have been better (XP Pro) and some worse (Win 3.1). In all, they’ve never gotten it quite right…maybe until now. As a computer end-user, I only really care about a few things: does it boot up quickly; can I access all my files; does it connect seamlessly from hotel room to airport to my desktop; is the battery long-lasting; and does it load and use all the programs I need and want to run? The answers so far from Windows 7 have been a resounding YES. As a tech-savvy end-user and also as someone who spent years understanding and working with the engine under the hood of these devices, Windows 7 is nothing short of incredible. I think I like it better than the Mac OS. Yes, I said it – I like it better than the Mac, but please don’t tell my wife. Gone are the problems with wireless connectivity under XP; gone are some of the fake plug-and-play issues that Windows tried and failed to copy from UNIX. Gone are the random crashes, memory errors, OS incompatibilities, command-line nightmares. For years, I’ve advised people not to jump to the newest OS released just because it was available – I was always worried about stepping into a new set of unknown problems – but in this case, I don’t want my old system back, thanks very much. I don’t want to convert this column into the newest “I’m a PC” commercial, so let me offer some practical information as well. This Windows system was designed to make your life easier, not try and copy the Mac. Here are the new (and apparently working) features of Windows 7 that make it a good choice for the individual lawyer or larger firms: -Faster and more secure file handling – better searches even across a network -Improved design for mobile users – battery life, wireless connectivity, encryption -Streamlined task management with Jump Lists and improved multi-tasking -Reduced energy usage and increased access times for documents -All of the above were designed to improve productivity and initial testing data seems to suggest that it’s working I won’t bore you with the remainder of the technical details (feel free to visit Microsoft’s website), so allow me to close with the following: I am not afraid of moving anyone from their current system to the newest Microsoft system - Windows 7. Again, please don’t tell Apple or my wife, ok? Young Lawyer Update By Erin Stankewicz, Jackson Kelly PLLC

This year is already flying by! The Young Lawyers Committee (“YLC”) has been hard at work. A few of the young lawyers answered my plea for help and were able to assist the DTCWV Amicus Committee in filing an Amicus Curiae brief with the Supreme Court of Appeals of West Virginia on behalf of the DTCWV. Co-chair Jason Foster of Steptoe & Johnson PLLC, along with various young lawyers, are almost done compiling a Notebook of Articles, which reviews state and federal law in a number of substan- tive areas for the 28th Annual Meeting on May 12-14. Co-chair Mary Elizabeth Snead of Robinson & McElwee PLLC organized a “lunch and learn” CLE for the young lawyers on March 24th regarding discov- ery of electronically stored information. We are also busy planning for the Trial Academy that will be on October 1st in Charleston. This year, the Trial Academy will be focused on all areas of a trial, including the pre-trial conference and arguing motions. This is a must attend CLE for any young lawyer. If you would like to become involved with planning this CLE, or have any suggestions about the YLC, please e-mail me at [email protected]. Page 9

. Calendar of Events Summer/Fall 2010

DRI – Young Lawyers NBI – Resolving Legal and Financial Issues in Elder Care June 17, 2010 September 27, 2010 Eden Roc Renaissance – Miami Beach, FL The Summit – Charleston, WV For more information call: For more information call: 866-240-1890 312-795-1101 DRI – Construction Law WV State Bar – WVCLE "Ethics" September 30, 2010 June 30, 2010 Bellagio – Las Vegas, NV Charleston, WV & via distance learning in Martinsburg, For more information call: WV & Morgantown, WV 312-795-1101 For more information call: 304-293-7255 NBI – Managing Liens and Subrogation in Auto Accident WV State Bar – Basic Mediation Training Sessions Litigation July 13 – 14, 2010 October 5, 2010 Days Hotel – Flatwoods, WV The Summit – Charleston, WV For more information call: 304-558-2456 DTCWV Trial Academy DRI – Oil Spill Litigation and Emerging Issues October 1, 2010 August 12, 2010 Jackson Kelly, Charleston Office – Charleston, WV Houstonian Hotel – Houston, TX For more information call: For more information call: 304-344-1611 312-795-1101 DRI Annual Meeting

DTCWV Regional Luncheon & CLE October 20 – 24, 2010 September 1 San Diego Marriott Hotel & Marina – San Diego, CA Huntington, WV For more information call: More information to come 312-795-1101

DRI – Nursing Home/ALF Litigation September 23, 2010 Swissotel Chicago – Chicago, IL For more information call: 312-795-1101

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DRI Membership If you are member of DTCWV and wish to join DRI, you can receive one-year free membership. If you are a Young Lawyer with five years or less of practice, you will also receive a certificate for FREE attendance at a future DRI seminar which is good for two years from the date you join DRI. Visit DRI’s website at www.dri.org to complete the membership application and learn more about the offer.

Substantive Group Chairs

Construction Law—Eric Hulett, Chair, Steptoe & Johnson, PLLC Business/Commercial Law—Gerry Stowers, Chair, Bowles Rice McDavid Graff & Love LLP Employment Law—Charlotte A. H. Norris, Chair, Farrell, Farrell & Farrell, PLLC Insurance Law—Rachel Moore, Chair, Steptoe & Johnson, PLLC Medical Liability—Bernard S. Vallejos, Chair, Farrell, Farrell & Farrell,, PLLC Products Liability—Mark Hayes, Chair, Robinson & McElwee, PLLC Christina Terek, Vice-Chair, Spilman Thomas & Battle, PLLC Professional Liability/Ethics—Jill McIntyre, Chair, Jackson Kelly PLLC Safety & Health—Mike Cimino, Chair, Jackson Kelly PLLC Workers’ Compensation—Jeffrey Brannon, Chair, Pullin, Fowler, Flanagan, Brown & Poe, PLLC Steve Wellman, Vice-Chair, Jenkins Fenstermaker, PLLC

Mission Statement To bring together attorneys who defend individuals and corporations in civil litigation for the purposes of elevating the standards of West Virginia trial practice; supporting and advocating for the improvement of the adversary system of jurisprudence; and increasing the quality of services rendered by the legal profession to the citizens of West Virginia. 2010 - 2011 Board of Governors

Lee Murray Hall, President Mark Hayes Gerry Stowers, Vice President Jeffrey Holmstrand Mike Cimino, Treasurer Robert Kent Laurie Barbe, Secretary Erik Legg David Wyant, Immediate Past President Robert Massie Steve Crislip, DRI Rep Cynthia Lowther, Paralegal Representative Jill Bentz Jill McIntyre Rita Biser Heather Noel Erin Stankewicz, Young Lawyer Representative Steve Nord Tammy DeFazio Chazz Printz, Jr. Teresa Dumire Mark Robinson Victor Flanagan Susan Snowden Steve Gandee Randall Trautwein Jane Harkins Constance Weber

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