ISSUE 76 FALL 2014 FRANCIS M. WIKSTROM 65TH PRESIDENT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS Linda Jones and Fran Wikstrom in Sun Valley, Idaho American College of Trial Lawyers JOURNAL Chancellor-Founder Hon. Emil Gumpert (1895-1982) OFFICERS Robert L. Byman President Francis M. Wikstrom President-Elect Michael W. Smith Treasurer Andy Coats Bartholomew J. Dalton Secretary and Stephen Grant Chilton Davis Varner Immediate Past President BOARD OF REGENTS Please contact the National Office with contributions or Rodney Acker Elizabeth N. Mulvey suggestions at [email protected]. Dallas, Texas Boston, Massachusetts Robert L. Byman James T. Murray, Jr. Chicago, Illinois Milwaukee, Wisconsin We know the problems, the solutions are at hand. Bartholomew J. Dalton Michael L. O’Donnell Wilmington, Delaware Denver, Colorado In 2009, the Institute for the Advancement of the American Legal Sys- James M. Danielson C. Rufus Pennington, III tem (IAALS) and the College released their final report on discovery Wenatchee, Washington Jacksonville Beach, Florida and other aspects of the civil justice system. With some alarm, the Trudie Ross Hamilton William H. Sandweg III Waterbury, Connecticut Phoenix, Arizona report highlighted the problems facing the system itself and offered William T. Hangley Michael W. Smith twenty-nine sound recommendations. Trials, particularly jury trials, Philadelphia, Pennsylvania Richmond, Virginia the report concluded, are not the concern and are well-worth preserv- David J. Hensler Kathleen M. Trafford ing as they represent a fundamental keystone of our democracy. Rath- Washington, District of Columbia Columbus, Ohio er, at its core, the issue is the lack of cost-benefit rationale in most civil Michael F. Kinney Chilton Davis Varner suits, emanating from the notion that justice in every case must mean Omaha, Nebraska Atlanta, Georgia perfect justice. Jeffrey S. Leon, LSM Francis M. Wikstrom Toronto, Ontario Salt Lake City, Utah Until fairly recently, in other words, we have been mired in the idea W. Francis Marion, Jr. Douglas R. Young that no evidentiary stone—whether by expert or lay witnesses, at dis- Greenville, South Carolina San Francisco, California covery or trial—should be left unturned, oblivious to the concept of EDITORIAL BOARD proportionality or cost, the latter of which has prevented many actions Andrew M. Coats (Editor) Oklahoma City, Oklahoma being brought in the first place, irrespective of the merits of the claim. Stephen M. Grant (Editor) Toronto, Ontario Elizabeth K. Ainslie Philadelphia, Pennsylvania That a plenitude of cases have already left (and continue to leave) the Catharine Biggs Arrowood Raleigh, North Carolina civil justice system altogether for various forms of alternative dispute Lisa G. Arrowood Boston, Massachusetts resolution, where the ability to craft a process suitable to a particular Carol Elder Bruce Washington, District of Columbia mandate is readily apparent, is beyond doubt. Richard C. Cahn Huntington, New York Lynne D. Kassie, Ad. E. Montréal, Québec Timothy D. Kelly Minneapolis, Minnesota In 2012, the IAALS released another report on implementing a Short, David N. Kitner Dallas, Texas Summary and Expedited (SSE) Civil Action program designed to turn Kevin J. Kuhn Denver, Colorado the tide away from the current procedural and other inefficiencies now Paul S. Meyer Costa Mesa, California Robert F. Parker Merrillville, Indiana beleaguering our system. This report called for fixing focused, short Paul Mark Sandler Baltimore, Maryland trials, with certain trial dates, encouraging evidentiary stipulations and G. Gray Wilson Winston-Salem, North Carolina issue agreements along the way then streamlining the entire litigation E. Osborne Ayscue, Jr. (Editor Emeritus) Charlotte, North Carolina Chilton Davis Varner (Regent Liaison) Atlanta, Georgia process along these lines. Is this perfect justice? Likely not, but on several fronts, it may be a better way or, in many cases, a more-than- MANAGING EDITORS viable alternative. Eliza Gano Amy Mrugalski For comments, inquiries, and submissions, Obviously, one size does not fit all, and this approach is clearly not please email the National Office at [email protected] suitable for all cases. Yet, there is much to commend it in any number Liz Doten Design Director of practice areas—from ordinary negligence actions through straight- Ben Majors Photographer, EventWorks Dennis J. Maggi CAE, Executive Director forward commercial contract disputes. Among other benefits, this eas- ily could lead to the possibility of more lawyers actually trying more American College of Trial Lawyers cases, a consequence of note for the College. (For those interested, the 19900 MacArthur Boulevard, Suite 530 Irvine, CA 92612 IAALS released a report titled “Summary of Empirical Research on the 949.752.1801 Civil Justice Process” in May 2014.) www.actl.com Copyright ©2014 North of the border, the profession and public face the same pressures. As early as 1999, Honorary Fellow and Supreme Court of Canada Jus- tice Rosalie Abella (as she is now) told an audience of senior lawyers that “we have moved from being a society governed by the rule of law to being a society governed by the law of rules.” She asked rhetoric- ally, “Can we honestly say that the fair resolution of [a civil] dispute [usually between two private parties] requires several years and resort to hundreds of rules?... People want their day in court, not their years.” More recently, Professor Adam Dodek of the University of Ottawa Faculty of Law and well-known legal commentator has written about FEATURES “Rationing Civil Justice.” Except for the lawyers, he notes, the civil jus- President’s Profile: Francis M. Wikstrom............. 3 tice system is publicly-funded and to allow lawyers (and their clients) the right to dictate the time required for their cases is backward. Rath- Britain’s Response to Terrorism, Revisited ........... 7 er, as is done in most appellate courts, the court should allot the time for Answer: Whose Is It? .......................................10 the presentation of a trial, based on the resources available. Each side gets one day, say. The parties are allowed one expert each or, even more The Vanishing Law Student ..............................11 radical, one expert appointed by the court. Discovery is presumptively Book Review ...................................................37 limited to one day, with extensions permitted only with leave, all of these echoing to some degree the IAALS/College recommendations. COLLEGE MEETINGS Do hybrid trials have their utility? These are trials conducted part- ly through affidavit evidence founded on factual assertions and partly Texas Fellows Luncheon ..................................14 through vive voce evidence where credibility is in issue. (See, T. Dick- Region 5 Meeting in South Dakota ....................23 son, “A Few Thoughts on Hybrid Trials”, The Advocate, Vol. 72, p. 361). What if the parties were required to pay user-fees? These would be Region 6 Meeting in Arkansas ..........................27 CONTENTS based on a sliding scale to ensure that the impecunious also have access Region 12 New England Regional Meeting to the courts. This is a current feature of the British Columbia courts in Rhode Island ...............................................29 but now before the Supreme Court of Canada for judicial consideration. Region 15 Meeting in Quebec ...........................33 Is this perfect justice? Clearly not, but it may go some distance to re- storing public confidence in, and increasing access to, the civil justice system. And there is light on the horizon. In a recent ABA Journal FELLOWS IN ACTION (“Change afoot in American civil justice system”), IAALS Executive Access to Justice: Mississippi Crusader ............15 Director Rebecca Love Kourlis reports that the system has been re- sponding and “momentum is building.” After citing examples of ex- College Sponsored Competitions ......................21 panded case management, streamlined discovery and simplified rules for less complex cases, she concludes that these efforts will make the system more responsive and less costly. While not “your grandfather’s ANNOUNCEMENTS or even your mother’s litigation system,” the risk that the civil justice National Office Updates ..................................... 6 system will implode on itself “is receding.” 2015 Spring Meeting Preview ...........................36 We know the solutions. Like the vanishing trial, trial lawyer and, now apparently, law student, if we fail to facilitate the transformation of the civil justice system into a new, efficient model, our chance to take some IN EVERY ISSUE ownership of these changes will vanish as well, sooner than we think. Awards and Honors ..................................6 As with “Working Smarter, Not Harder” (January 2014), a joint project of the IAALS and the College on case management, the College has Fellows to the Bench ............................ 10 been and remains in a unique position to promote implementation of Foundation Update ................................ 17 these initiatives. Emil Gumpert Award ................... 17 The Alabama Plan ...................... 19 In this issue, we feature an array of articles on various topics of inter- est, thought-provoking opinion pieces and a recap of our regional and Letter from the other meetings. The London/Paris meeting, as well, should be, well, Foundation President .................. 20 “Splendid, we say. Just splendid.” See