Emerging Litigation Podcast
Modernizing Our Court System (but Donโt Attend Trial from Your Car) with Hon. Scott Schlegel
The judicial system is overburdened for a number of reasons, and greater efficiency is a must if court systems are to achieve their important objectives. Technology and openness to all that it offers is a key solution, something that was tried, tested and proven during the Covid pandemic which closed courthouses and law offices around the nation. Along with technology, improvements can be made by reexamining their orthodoxies about how things should be done based on decades of "that's how we've always done it." This is a matter of importance to judges, lawyers, plaintiffs, defendants, and numerous others whose lives are impacted directly or indirectly when either the civil or criminal justice systems are inefficient, cumbersome, costly, confusing, slow, and even inaccessible. If only we had an example of at least one judge who is trying to do something about it. But wait ... Listen to my interview with the Hon. Scott Schlegel who presides over criminal civil and domestic matters in Louisiana's 24th Judicial District Court in Jefferson Parish. Judge Schlegel was elected to the bench in 2013, and quickly earned a reputation as a modern judge using technology to bring his court into the digital age, even before the pandemic forced the change on other jurists. He partnered with tech companies to develop efficiency tools like chat bots and online forms software. He launched courtonline.us and onlinejudge.us to consolidate his processes for the public. Judge Schlegel has received numerous awards and accolades, like the National Center for State Courts' 26th Annual William H. Rehnquist Award for Judicial Excellence. He was the American Bar Association's 2021 Legal Rebel. And he received the Fastcase 50 Award for his innovative approaches to the administration of justice. Prior to becoming a judge, he was a prosecutor and litigator. Judge Schlegel graduated with honors from Loyola University New Orleans College of Law. This podcast [...]
Greatly Exaggerated: The Impact of Bankruptcy on Mass Torts with Jennifer Hoekstra
When large companies face massive mass tort litigation, one way they can survive is to file for bankruptcy protection and reorganize. 3M recently put its Aearo Technologies subsidiary into bankruptcy in the face of more than 230,000 claims that's its defective earplugs caused hearing loss. When it came to filing bankruptcy 3M said Aearo was solely responsible for the product. But for several years of litigation 3M argued that it, as the parent, was solely responsible, not its various subsidiaries. That was a strategy that was beneficial to the company in multidistrict litigation. Why did 3M suddenly change course? What impact does bankruptcy have on claimants? Could corporations use bankruptcy law to neuter mass tort litigation for all eternity? And how did the strategy sit with the federal magistrate judge overseeing the multidistrict litigation? Joining me to discuss this incredibly complex litigation is Jennifer M. Hoekstra, a partner with Aylstock Witkin Kreis & Overholtz. Jennifer has been involved in all varieties of complex litigation since 2007, focusing on mass torts, drug and device litigation, and others. She has a J.D. from Tulane, which she earned while also completing a certificate in Environmental Law. She has actively served as trial counsel or an integral member of the trial team in several of the 3M Earplug trials securing nearly $300 million in compensatory damages for military veterans. Jennifer shared her insights on the intersection of complex mass torts and bankruptcy, an intersection that wasn't originally on her roadmap. This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me [...]
Under Pressure: Courts and Lawyers Trying to Deal With It with Diana Manning
The pressure on trial lawyers, judges, plaintiffs, defendants, and court systems is only increasing. The backlog of cases in New Jersey, for example, nearly quadrupled between February 2020 and 2021, the first year of the pandemic, according to NJ Spotlight News (NJSN). The state is also facing a historic shortage of jurists, NJSN reported, โleading to overworked judges, huge case backlogs and nearly 7,000 defendants in jail without bail, some 500 of them for more than two years despite a law that essentially requires a trial within two years for anyone detained." As reported by NJSN, one court official told the state Assembly Budget Committee about the impact of the pandemic on the court system: โBuildings were closed to most in-person trials for more than a year, although other proceedings continued virtually. The business closures and high unemployment led to a housing crisis that resulted in more than 46,000 pending cases that involve landlord-tenant issues . . . . But with all courts open and staff back to work in person, it is impossible to eliminate the backlog of cases with so many open judge seats.โ The problem is attributed to the state Senate, where the process is mired, even though the governor is making appointments. According to the National Counsel for State Courts, backlogs at one third of U.S. courts increased by 5%. It would have been worse had courts not held virtual hearings. Using the Court Statistic Project database, the numbers reveal in stark terms the impact the pandemic had in the year it came to America. Dispositions dropped from 43M in 2019 to 28M in 2020. Bench trials fell from 3M in 2019 to under 2M in 2020. Jury trials plummeted from 49K in 2019 to less than 19K in 2020. The Washington Post reported that the Pennsylvania Supreme Court declared a judicial emergency and [...]
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Emerging Litigation Journal
EMR Audit TrailโWhat Is It? Why Do They Matter? What Should You Look For? by Haley K. Grieco and Brooke E. Reddin
The Authors Haley K. Grieco (hgrieco@hallboothsmith.com) is a partner in the Paramus, New Jersey, office of Hall Booth Smith, where she defends physicians, hospitals, and other healthcare providers in a wide range of medical malpractice litigation. Brooke E. Reddin (breddin@hallboothsmith.com) is an associate with the firm, where she focuses her practice on healthcare, medical malpractice, and aging services litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. EMR Audit TrailโWhat Is It? Why Do They Matter? What Should You Look For? "As the healthcare industry becomes increasingly digitized, it is imperative that attorneys appreciate the impact it may have on their clients and their practice. In medical malpractice matters, discovery requests for metadataโspecifically, the production of the EMR audit trailโhas steadily increased over the past few years." Abstract: Maintaining electronic medical records, or EMRs, is now a nearly universal best practice among medical providers from small physician practices to large hospital networks. Unlike handwritten or typed records, these digital documents carry with them much more data than meets the eye. In this article, the authorsโtwo medical malpractice attorneysโ discuss what attorneys need to know about EMRs in the litigation context and the metadata bread crumb trail they leave behind. They discuss the types of data involved, federal requirements, discovery considerations, privacy implications, and the pros and cons and risks of using these records in defending healthcare providers. During the past ten years electronic medical records (EMR) have all but rendered obsolete handwritten medical records. Medical providers have had to learn computer systems, programs, software, hardware, and forms like never before. When hospitals, facilities, and medical offices change EMR systems, the process of learning the new system starts over. But what about [...]
Employers Be WARNed: Workforce Reduction Rules Meet New Workplace Definitions as Employees Go Remote by Juan Enjamio and Steven DiBeneditto
The Authors: Juan C. Enjamio (jenjamio@huntonak.com) is managing parter of the Miami office of Hunton Andrews Kurth where he dedicates his practice to complex domestic and international employment law matters. Steven J. DiBeneditto Jr. (sdibeneditto@huntonak.com) is a Washington, DC-based associate in the firmโs employment and labor group. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Employers Be WARNed Workforce Reduction Rules Meet New Workplace Definitions as Employees Go Remote "Numerous courts have opined that a โhome baseโ is a place in which the employee has some sort of physical connection. But this connection must be more than a โnotionalโ base, whereby the employee has a menial relationship." Introduction A common sentiment during the Covid-19 pandemic was that a different society would emerge from its ashes. While overstated in many cases, one segment of society that appears to have changed for good is the white collar workplace. Indeed, after enjoying the flexibility of working from home for more than 2 years, many white collar workers are demanding that a remote work option remain a permanent fixture at their place of employment. And with seemingly no negotiating leverage due to worker shortages across the country, employers have mostly acceded to these demands, with many opting to implement a โhybridโ workforce where employees work from home for part of the work week and transit to the physical workplace for the rest of the week. Other employers have opted to have employees work entirely from home in what is now generally known as a โremoteโ employee. But widespread adoption of a Hybrid Workforce presents a complex set of legal challenges for employers. These challenges are especially prevalent when making employment decisions using laws that were drafted decades ago [...]
Insurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and NonโFungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth GalleryInsurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and NonโFungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth
Insurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and NonโFungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth
Companies and individuals are riding the ups and downs of cryptocurrency and NFTsโwith losses and swings in the billions of dollarsโbut digital assets are not going away. Abstract: The risk of loss in certain categories may be mitigated by insurance, whether provided by tailored policies and/or under policies designed specifically for digital asset owners. Those with exposure to the digital asset sector should be attuned to the emerging marketplace for such insurance products. While it is early days for NFT-specific coverage, the rise of cryptocurrency has created a substantial marketplace for crypto coverage. Insurers are becoming increasingly able to model and assess risk, so more products are coming to market. That said, digital asset holders need to be able to select coverage that best suits their needs. In this article, the authors discuss the history and status of coverage for digital assets to assist readers in exploring how they might use insurance to mitigate risk in this emerging and rocky sector of global finance. "Over the course of a decade, the marketplace for cryptocurrency has increased from zero to an estimated $250 billion. However, only $6 billion in insurance coverage is currently available. It would be a gross understatement to say that there is a truly remarkable imbalance between market value and insurance capacity." Introduction Crypto markets are experiencing the greatest crash in their history to date. The value of a Bitcoin (BTC) has plummeted 70% from its peak and Ethereum (ETH) has fallen 77%. Since last November, the value of cryptocurrency tokens has lost $2 billion in value. As noted financial publication Barronโs put it: โCrypto is having a โLehman moment,โ a shattering of confidence triggered by plunging asset prices, liquidity freezing up, and billions of dollars wiped out in a few scary weeks.โ Cryptocurrency companies are halting withdrawals and transfers, platforms are seizing up, and regulators [...]
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