Fighting for Justice Blog

A How-to Guide for Pursuing Justice in a Personal Injury Case

Kara Yoh

Preparing for a personal injury battle? Fight for justice with the latest tools. AAJ Press’s Anatomy of a Personal Injury Lawsuit, 4th edition is the definitive resource for handling all aspects of a successful fight for justice. Written by more than 60 contributing authors and edited by John Romano, this new edition is full of detailed advice, practice tips, arguments, charts, illustrations, and examples that you will not find as a collection anywhere else. This must-have field manual is a step-by-step guide through the process of a personal injury claim, from the initial client interview to closing statements. Member-only discounts are available on all AAJ Press books and multimedia. Download the AAJ Press online catalog here. Visit the AAJ Press website to order and learn about other products. Or email education@justice.org or call (800) 622-1791 or (202) 965-3500, ext. 8612.

October Issue of Trial: Professional Negligence

Catherine O’Connor

The October issue of Trial focuses on professional negligence, such as wrongful deaths in cath labs, schools failing to protect students from cyberbullying, holding architects and engineers accountable for unsafe construction, and tips for protecting supervisory attorneys from malpractice. Read the full issue here. Articles include:

Bullying in a digital world by William S. Friedlander
- Bringing a cyberbullying or sexting lawsuit can be challenging. Learn how to navigate variances in state laws, government immunity defenses, and First Amendment protection.
Avoiding malpractice: 10 tips for supervisory attorneys by Jeffrey Ogden Katz and Eric J. Chisholm
- Implementing policies around supervisory duties can protect attorneys from being held liable for subordinates’ actions.
Building your case against architects and engineers by David L. Kwass
- Design professionals play a crucial role in construction and demolition yet are often protected from liability. But there are ways to hold them accountable for endangering workers and the public.
Sidebar: When your expert backs out by David M. Kopstein
- Anticipate problems and know how to respond if an expert quits before trial or deposition.
Getting to the heart of wrongful deaths in catheterization labs by Gerald D. Jowers Jr.
- Make a case against doctors who put their patients at risk by removing lead wires in cath labs instead of operating rooms.
Q&A: A "practical term" for the High Court, an interview by Alyssa E. Lambert
- Take a look back at the U.S. Supreme Court’s 2014 Term with Robert Peck, president of the Center for Constitutional Litigation.
Neuropsychology and traumatic brain injury by Bruce H. Stern
- Retaining a neuropsychologist can make or break a TBI case. Learn what information you need to prepare for roadblocks from the defense.
Book review: And Give Up Showbiz?
- Kristen L. Beightol reviews Josh Young’s biography And Give Up Showbiz? How Fred Levin Beat Big Tobacco, Avoided Two Murder Prosecutions, Became a Chief of Ghana, Earned Boxing Manager of the Year, and Transformed American Law.
AAJ Officers, 2015-2016

September Issue of Trial: Settlement and Negotiation

Rose Catherine Hernandez

In September, Trial focuses on settlement and negotiation, which features settlement demands, class action settlements, Medicare claims, communicating with opposing counsel, and preparing your client for mediation. Articles include:

Class action settlements by Elizabeth J. Cabraser and Jonathan D. Selbin
- Settling class actions involves advance planning and knowing what to avoid long before the ink dries on the final settlement papers. Also, read an exclusive online Q & A with the authors.
The when and how of a settlement demand by Lauren Ellerman
- Before making a settlement demand, thoroughly evaluating a client’s case and weighing all the options is crucial.
Negotiation tips all lawyers should know, an interview by Kate Halloran
- Attorney Jerome F. O’Neill, who lectures nationwide on negotiation techniques and ethical considerations, shares what he has learned in years of experience.
Dealing with carriers under Medicare’s more watchful eye by John S. Simmons and Derek A. Shoemake
- With Medicare tracking settlements more closely, it’s important to understand the process and anticipate the potential challenges of handling a Medicare beneficiary’s case.
Prepare your client for mediation by Michael S. Tilton
- Keeping clients informed and engaged during settlement and mediation will help keep their expectations reasonable and successfully resolve claims.
Bridging communication gaps in negotiations by Paula Rasmussen
- Differences in communication style do not have to be an obstacle. Attorneys can harness those differences to become better negotiators.
Q&A: The never-ending battle for auto safety, an online exclusive
- Attorney Robert Ammons interviews Michael Lemov about his book, Car Safety Wars: One Hundred Years of Technology, Politics, and Death, and the future of auto recalls. Read the book review in Trial here.

Read the full issue here.

When Food Companies Put Profits Ahead of Your Safety

David Ratcliff

Getting dinner ready in my house can be a somewhat complicated business. One of my kids is trying to be a vegan, another wants to eat gluten and lactose-free, another is allergic to strawberries, and I myself am supposed to be watching my calories. So there’s a lot to consider when preparing a family meal, and that’s before we get to everyone’s particular likes and dislikes. The one thing I always took for granted though, was the safety of our food.

Sure, I knew that meats should be cooked to a certain temperature, but otherwise I believed that the food we put on the table was safe to eat. But the more I’ve worked on the issue of food safety, the more I’ve realized that’s not always the case. The food we buy frequently presents danger for our families. Danger that even the most knowledgeable and hygienic of cooks cannot avoid.

Approximately 48 million Americans are sickened by foodborne illnesses every year; 128,000 are hospitalized; and 3,000 die, costing the nation approximately $77 billion.

And this is just the tip of the iceberg. Even when consumers are made sick by food, the vast majority of cases are never specifically identified - 81 percent of foodborne illnesses remain the product of unknown agents. The vast majority of incidences of what we know colloquially as the stomach flu are actually cases of foodborne illness.

Today AAJ is releasing a new report that shows the scope of this enormous problem, and demonstrates how the civil justice system plays a key roll as consumers’ last line of defense. The civil justice system has proven to be the most effective – and sometimes the only – mechanism for deterring negligent behavior.

The report outlines several instances in which food companies knowingly let Americans eat food contaminated with deadly pathogens. Take, for example, the 2009 peanut scandal, in which executives at the Peanut Corporation of America (PCA) knew for at least three years that they had a salmonella problem but put profits ahead of safety and continued to ship their products to unsuspecting consumers. At least ten of those consumers died. The court case would eventually reveal that when employees told PCA President Stewart Parnell of the contamination, he replied “Just ship it,” and in another instance, “turn them loose.” Those products were incorporated into hundreds of products under a wide variety of labels.

The civil justice system has frequently uncovered this kind of pattern of corporations putting profits over safety. This past spring, Blue Bell took its ice cream off grocery shelves for months after three people died from listeria contamination. We now know that Blue Bell was aware that its factories had a listeria problem two years ago in 2013, but did not stop production or issue a recall.

Remarkably, most processed food manufacturing facilities and farms are not regularly visited by federal inspectors. Federal regulators are overwhelmed, and their focus falls on identifying outbreaks after they happen. The civil justice system works to prevent contamination before it happens. During litigation, attorneys frequently use discovery to compel producers, suppliers, buyers, and auditors to disclose inside information, which helps to trace how food was allowed to become contaminated – and to pinpoint the negligent parties. This power stands in stark contrast to that of regulators, who are often restricted to asking the food company for nothing more than a voluntary recall with no admission of negligence.

For food manufacturers, knowing they can be held accountable in court provides significant incentive to improve safety and end dangerous practices. Even the FDA’s highest-ranking food-safety official, Michael Taylor, has described litigation as “a central element of accountability.”

We may not think about the safety of our food regularly, but we are putting an immense trust in the companies that produce what we eat. Too often, they put profits ahead of safety, and we suffer the consequences.

Please learn more by reading our full report!

David Ratcliff is a researcher at the American Association for Justice and co-authored AAJ’s report, “Food Safety and the Civil Justice System.”

August Issue of Trial: Lawyers Banding Together

Jennifer Adams

In August, Trial features trial lawyers banding together to prevent catastrophic changes to the Federal Rules, fight forced arbitration, end distracted driving, lobby members of Congress, and empower female attorneys in mass torts. Articles include:

A voice for injured plaintiffs by John W. Griffin
- When drastic changes to the FRCP threatened to stymie plaintiffs’ ability to conduct meaningful discovery, AAJ and its members sprang into action and stopped many harmful amendments
Working together to end distracted driving by Joel Feldman
- One lawyer’s personal tragedy motivated thousands of trial attorneys to volunteer to spread the message that distracted driving kills
Dodging the defense bar's silver bullet by Karla Gilbride and F. Paul Bland
- How to succeed when facing binding, pre-dispute arbitration provisions by exploiting weaknesses in the clauses so plaintiffs can have their day in court
Why I participate in AAJ's lobby days by Laruen Barnes, John Bey, and Marianne C. LeBlanc
- Three AAJ members share their first-hand experiences of talking to their representatives in Congress
Empowering women in mass torts by Aimee H. Wagstaff
- Through Women En Mass, female lawyers seek to break glass ceilings in the industry

Read the full issue here.

June Trial delves into Psychology and the Law

Allison Burtka

For the June issue of the magazine, Trial invited more than a dozen lawyers and other experts to write about different aspects of the theme “Psychology and the Law.” The result is an insightful collection of articles that cover the spectrum, from case framing to emotions that matter. Articles include:

Frame your case to persuade jurors, by Mark Mandell

Focus on looking inward

The psychology of priorities, by Mark Lanier
Psychological barriers to trial, by Rick Friedman
Dealing with fear, by Gerry L. Spence

Focus on crafting your technique

The psychology of voir dire, by Lisa Blue and Robert Hirschhorn
Use attribution principles to establish causation, by Howard L. Nations
Arm jurors throughout trial, by David Ball

Focus on tapping into emotions

The weight of morals, mores, and beliefs in the courtroom, by Gregory S. Cusimano
The emotions that matter, Paul J. Scoptur

Focus on the mind's eye

Managing decision-makers' mental imagery, by Eric Oliver
The shared common experience, by Robyn Wishart

Focus on making connections

Be a teacher, not a salesman, by Randi McGinn
Mastering 'connectionology,' by John F. Romano
Advocacy in a changing world, by William S. Bailey

Read the full issue here: https://www.justice.org/magazine/trial/2015-june%E2%80%94psychology-and-law

Giving Back on Law Day

Lisa Blue

On this day, we celebrate Law Day, which symbolizes the assurance of justice and equality under the law for every American citizen. We live in a nation that has benefitted greatly from the cornerstones of our democracy—the Declaration of Independence and U.S. Constitution—crafted and set by our nation’s founders.

For trial lawyers, Law Day is a day to reflect on our efforts to ensure that even the most vulnerable in society have a voice and a fair chance at seeking justice, regardless of the foe’s might and financial power. The American Association for Justice and its members are dedicated to protecting the injured and vulnerable, and we fight every day to make sure that Americans have access to justice.

This year, Law Day is not only an opportunity to rededicate ourselves to preserving and promoting access to justice, but also an opportunity to give back to our communities.

We called on AAJ members this year to tell us how they are giving back to their communities this spring in honor of Law Day, and we’ve heard from individual lawyers, firms, and other trial lawyer associations from coast to coast, and beyond.

Trial attorneys across the country are volunteering their time through projects that include but are not limited to: serving food at homeless shelters, offering free legal advice to members of the community, giving distracted driving presentations, and volunteering through programs to improve child literacy. AAJ staff will volunteer their time at the Capital Area Food Bank.

We’ve been posting these volunteer efforts of our AAJ members and their firms on our AAJ Facebook page, and many of them are listed here:

The Injury Board
David Owen (MS)
Thomas Edwards, Jr. (FL)
Susan Roe (CA)
Lori Andrus (CA)
The Injury Board
David Owen (MS)
Thomas Edwards, Jr. (FL)
Susan Roe (CA)
Lori Andrus (CA)
Kathy McCauley (KY)
Danielle Mason (AL)
Michael Gillis (MA)
Kansas Association for Justice
Scott Goodwin (MI)
Alexandra Logsdon (KY)
Alreen Haeggquist (CA)
Joel Feldman (PA)
Vincent Greene (RI)
Tom Doehrman (IN)
Jeffrey Lapin (NE)
Tim Pickell (WA)
Amie Peters (WA)
Tobi Milrood (PA)
Kim Martel (MD)
Robert Stoney (VA)
Al Ellis (TX)
Leo Boyle (MA)
Deborah Schweizer (CA)
Leslie Goller (FL)
Kevin Monsour (KY)
Drew Britcher (NJ)
Margaret Libby Edwards (TX)
Robin Kriberney (FL)
Kathleen Nastri (CT)
Wayne Hogan (FL)
Connecticut Trial Lawyers Association
Elise Sanguinetti (CA)
Florence Murray (OH)
Bruce Stern (NJ)
Anthony Leone (RI)
Wayne Parsons (HI)
Kimberly Dale (AR)
Alabama State Bar
Mark Kitrick (OH)
Mary Alice Mclarty (TX)
Noble McIntyre (OK)
David Singer (FL)
Kentucky Justice Association
Steve Irving (LA)
Michael Bigos (ME)
Molly Greenblatt Welch (CO)
Kristen Kenney (CT)
Bryan Pope (TX)
Hadley Matarazzo (NY)

Advocates in Action: 2015 WTLC Lobby Days

AJ De Bartolomeo

The Women Trial Lawyers’ Caucus (WTLC) Lobby Days is a biennial event for female trial lawyers across the country to come together in Washington, D.C. and advocate for a strong civil justice system. This year’s event will be held in Washington, DC on June 10-11, 2015. As a past participant, I can confidently say that this event is an important, amazing, and empowering experience. I encourage you to join me.

You might think, “I am not a professional policy expert – how am I supposed to learn those skills when I have a law practice to run?” But you are forgetting that you already have the key traits of a skilled lobbyist. Your professional time is spent advocating for your clients’ rights in courtrooms, conference rooms, depositions, and even board rooms. During your time on Capitol Hill, you will be a trial lawyer acting as an activist for the rights and interests of your clients. You are a natural.

As strong advocates for our clients and as voters, it is our responsibility and privilege to make sure that Congress understands the importance of preserving access to the civil justice system for individuals. Please join us to explain to our Senators and Representatives, among other issues, how tort reform hurts the Americans to whom they swore an oath to serve – their constituents and our clients.

As a trial lawyer and an American voter, you already know how essential it is for Members of Congress to hear from us on the issues and concerns of their constituents. I will be a participant in the upcoming 2015 Lobby Days as a trial lawyer, a voter, and as an officer of the WTLC. I hope that you will join me.

I’m In! Now What?

It is easy to sign up – email Jennifer Rafter at Jennifer.Rafter@justice.org or fill out the online registration form here, and make your own travel arrangements. For your convenience, AAJ has reserved a room block at the Hyatt Regency Capitol Hill which will be available until May 12, 2015. Book at (202) 737-1234 or online here.

Your participation is what makes this event so successful. Please join us in Washington, DC on June 10-11, 2015!

Ways to Fortify Your Practice

Allison Burtka

The March issue of Trial magazine provides guidance on how to strengthen your law practice in several different areas: marketing, managing your email, your approach to your cases, avoiding malpractice, and apps to use for depositions.

In "Looking Inside Your Own Mind," Mark Kitrick and Mark Lewis encourage lawyers to take a look inward. They explain how using guidance from neuroscience and social science principles can make you a better lawyer and allow you to see your cases more clearly.

The U.S. Chamber’s Latest Attack on Class Actions

Michelle Kimmel

The U.S. Chamber of Commerce really doesn't like class actions. Neither do the corporations that fund their efforts. Why? Mainly because corporations and their front groups know that class actions give American workers and consumers the power and ability to level the playing field, even when facing the most powerful corporations in the world. In fact, class actions are often the only way that individuals can hold corporations accountable when they are faced with widespread wrongdoing.

The Chamber’s disdain for class actions was on full display at a hearing in the House Judiciary Subcommittee on the Constitution and Civil Justice. Entitled, “The State of Class Action Ten Years After the Enactment of the Class Action Fairness Act,” the hearing set out to set the stage to pass legislation to further limit consumers’ ability to band together in a class action.

This is the latest move in their campaign to chip away at consumers’ access to justice. They have attacked class actions from every conceivable angle – from advocating for amendments to weaken the procedural rule governing class actions, to pushing Congress to enact laws that serve as hurdles to class formation, to burying class action bans in forced arbitration clauses hidden in the fine print.

But at today’s hearing some witnesses actually argued that class actions serve very little public good. However, a new study released today by the American Association for Justice (AAJ) and the National Association of Consumer Advocates (NACA), debunks this notion and highlights ways that class actions benefited consumers in just the year 2009 alone:

They empowered consumers. When the price of propane shot up in 2008, consumers filed suit against Ferrellgas for allegedly reducing the amount of propane in its tanks without notifying consumers or changing the labels. Through a class action settlement, consumers recovered up to $25 million for being overcharged. [1]
They allowed victims of financial fraud to recover. Through a class action, $219 million was returned to investors whose retirement funds were devastated by Bernie Madoff’s colossal Ponzi scheme. The judge in the case praised the equitable settlement, stating that nearly all class members were made whole. [2]
They restored people’s rights. Thousands of disabled residents living in New York City Housing Authority buildings could not go in and out of their housing due to widespread disrepair of elevators. Through a class actions, the residents forced the city to repair the elevators in a timely matter. [3]
They restored employees’ retirement funds. Level 3 Communications employees filed suit against employee retirement plan managers for withholding information about company troubles and continuing to invest in the overvalued company stock while employees lost their retirement funds. It took a class action to restore $3.2 million in lost retirement funds. [4]
They addressed health and environmental harms. A dike at a coal plant operated by the Tennessee Valley Authority (TVA) burst, sending more than a billion gallons of highly toxic coal ash slurry into waterways and covering nearly 300 acres with sludge. The coal ash at this plant was held in earthen dikes rather than lined landfills. Leaks and seepage plagued the dikes at the TVA coal plant for years. According to an inspection report, the TVA knew about leaks at the facility for more than two decades and opted not to pay for long-term solutions to the problem. A class action was brought on behalf of property owners who suffered damages. The district court found in their favor on their claims of negligence, trespass, and private nuisance. The case then went to mediation to determine appropriate damages, and on August 1, 2014, it was announced that TVA had agreed to pay $27.8 million to settle claims from property owners who suffered damages due to the 2008 spill of coal ash sludge. [5]

You can read the full report here.

Stay tuned for more to come on this issue.

[1] Drucker v. Ferrellgas Partners L.P. et al, No. 2:09-cv-02305 (D. Kan. 2009).

[2] Bd. Of Trustees of Buffalo Laborers Security Fund et al v. J.P. Jeanneret Assocs. Inc. et al, No. 09-cv-08362 (S.D.N.Y. 2009), In re Beacon Assocs. Litig., No. 09-cv-00777 (S.D.N.Y. 2012) and In Re J.P. Jeanneret Assocs., 769 F. Supp. 2d 340 (S.D.N.Y. 2011).

[3] Brito et al v. New York City Housing Authority, et al, 09-cv-01621 (E.D.N.Y.).;

[4] Walter v. Level 3 Communications, Inc., No. 09-cv-00658 (D. Colo. 2009).

[5] Blanchard v. Tennessee Valley Authority, No. 09-cv-00009 (E.D. Tenn. 2009).