Defense Counsel Journal articles from July 2003

Defense Counsel Journal archives from July 2003

International Association of Defense Counsel tenets of professionalism.
July 1, 2003... 1. We will conduct ourselves before the court in a manner which demonstrates respect for the law and preserves the decorum and integrity of the judicial process. 2. We recognize that professional courtesy is consistent with zealous...

Loss of chance in medical malpractice: a look at recent developments: the growing acceptance of this doctrine raises difficult public policy issues, as well as concerns for the limits of medical professional liability. .
July 1, 2003... THE acceptance and application of the loss of chance doctrine in medical malpractice litigation continues to grow at an alarming rate. While once only a minority view, a majority of the jurisdictions that have addressed the issue now favor...

Making the case against medical monitoring: has the shine faded on this trend? Three recent state supreme court cases have refused to recognize this novel extension of established tort law, and class certification looks dim. (Feature Articles).
July 1, 2003... MEDICAL monitoring is a novel theory that is demanding more and more attention in product liability litigation. Plaintiffs seeking medical monitoring want defendants to pay the costs of diagnostic testing and medical surveillance to detect the...

Effect on surety of obligee's release of principal: a critical look at the rules in the restatement: the Restatement (Third) of Suretyship and Guaranty addresses the consequences of the obligee's release of the principal. (Feature Articles).
July 1, 2003... THE Restatement (Third) of Suretyship and Guaranty, which was adopted by the American Law Institute in 1995 and supersedes the suretyship law provisions of the 1941 Restatement of Security, addresses, in Sections 37 through 39, the consequences...

2002: Australia's year zero of tort reform: but federal government's response is crucial: in the wake of the recommendations of the Ipp Report, legislation at the state and territory level will shape litigation for years to come.
July 1, 2003... IT MAY have taken the collapse of a major insurer and a medical indemnity organisation, spiralling premiums and some highly publicised cases, but 2002 was a year of unprecedented law reform in Australia. The immediate trigger for the flurry...

A case for national e-mail regulation: state UCE statutes have infirmities: no matter how you test state UCE statutes, they are ineffective to stop spam and many are invalid under the dormant commerce clause. .
July 1, 2003... BY April of this year, 30 states had enacted statutes to combat the growing number of unsolicited commercial e-mails (UCE), better known by the term "spam." A list of the statutes appears in the box on page 361. Unfortunately, insofar as...

Touchstone for insurers pursuing subrogation: save the evidence: spoliation of evidence is costly and disastrous, particularly to subrogees when they seek recovery of losses. (Feature Articles).
July 1, 2003... THE ISSUE of the spoliation of evidence is of the utmost importance to an insurer planning to pursue subrogation. All reasonable attempts must be made to preserve material evidence regarding the cause of the loss. When, for example, a product...

CD-ROM: briefing of the future is coming at a click of a mouse near you: appellate courts are moving toward the acceptance of CD-ROM briefs, and they, as well as appellate practitioners, are welcoming the trend. .
July 1, 2003... A CD-ROM brief is an electronic version of a paper brief stored on a compact disk with read-only memory. The CD-ROM (compact disk, read only memory) contains the briefs, authorities cited in the briefs, and the entire appellate record. It may...

Anchors away: attacking dollar suggestions for non-economic damages in closings: defense counsel should use a motion in limine to preclude plaintiffs' attorneys from using lump sum or per diem computations to jurors. (Feature Articles).
July 1, 2003... PICTURE THIS. John Doe suffers a serious and permanent leg injury. At trial, his attorney produces testimony from Doe and his healthcare providers regarding the chronic pain and disability Doe is suffering, as well as his treatment. During...

Annual survey of fidelity and surety law, 2002, Part II: this roundup of recent cases covers public and private construction bonds and financial institution bonds. .
July 1, 2003... Edited by Charles W. Linder Jr. I. PUBLIC CONSTRUCTION BONDS A. Bonds under Federal Laws Miller Act claims generally arbitrable under Federal Arbitration Act, but terms of standard AIA contract expressed parties' intent to exclude...