Emerging Litigation Podcast

Hosted by Tom Hagy

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Episodes

133

Latest episode

Oct 2026

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EN-US

About the show

Litigators and other professionals share their thoughts on ELP about new legal theories, new areas of litigation, and how existing (sometimes old) laws are being asked to respond to emerging risks. The podcast is designed for plaintiff attorneys, defense counsel, corporations, risk professionals, litigation support companies, law students, or anyone interested in the law. The host is Tom Hagy, long-time legal news writer and enthusiast. He is former editor and publisher of Mealey's Litigation Reports, Founder and Editor-in-Chief of HB Litigation, co-owner of Critical Legal Content, and Editor-in-Chief of multiple legal blogs for clients. Contact him at Editor@LitigationConferences.com.

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60 recent

October 27, 2026Episode 13159 min

A Winning Appeal Starts Before There is Anything to Appeal with Thomas Chappell and Scott Koven

The appeal you’re counting on might already be out of reach, and it has nothing to do with your writing talents. In this episode I speak with W. Thomas Chappell and Scott Koven of Woods Rogers about this reality: appellate outcomes are often shaped at trial by preservation, waiver, and the quality of the record. W. Thomas Chappell is a principal at Woods Rogers and an experienced trial and appellate lawyer who handles complex civil litigation throughout Virginia. A former Supreme Court of Virginia law clerk, he regularly represents clients in state and federal appeals and also works with other trial lawyers as appellate counsel or consultant. Scott Koven is an associate at Woods Rogers focusing on appellate advocacy and employment law. Before entering private practice, he clerked for Judge Daniel E. Ortiz of the Court of Appeals of Virginia, experience he now brings to appellate strategy and complex litigation. We dig into how to decide whether an appeal is even worth it, why appellate courts care so much about standards of review, and when evidence issues can actually move the needle. My guests discuss the “preservation tripwires” that can doom a strong case: vague objections, failing to get a clear ruling, not proffering excluded evidence, and letting key moments happen off the transcript. They also elaborate on under-the-radar waiver problems, including the same-evidence rule, renewing motions to strike, and the voluntary payment doctrine where paying a judgment can jeopardize your appeal. We then shift to oral argument reality. Briefs do most of the work, and oral argument is where lawyers can either answer the panel’s real concerns or accidentally lock in a loss. Along the way, we talk about Virginia’s expanded Court of Appeals, how that changes settlement leverage, and even pull lessons from music analysis and NASCAR post-race inspection: you can cross the finish line first and still lose. (That's what we, in the writing biz, call a "metaphor.") If you want practical appellate strategy, trial record tips, and clearer thinking about preserving issues for appeal, hit play. Subscribe, share with a trial teammate, and leave a review with the waiver trap you never want to see again. Hey, this is also available on YouTube, where all the kids are going these days, a statement that is already outdated. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

October 27, 2026Episode 1301 hr 19 min

AI As Litigation Infrastructure with Adam Massaro and Dan Brown

AI is no longer just a faster way to draft a memo. We’re watching it turn into litigation infrastructure: a system that tracks claims, defenses, key facts, disputed issues, and the evolving record so you can actually run a case with clarity instead of drowning in documents. I had the pleasure of interviewing Reed Smith’s Adam Massaro and Dan Brown to talk about what a “litigation operating system” looks like in real practice, why it has to be model-agnostic, and how a governed case corpus helps teams move faster without sacrificing accuracy. We dig into the practical mechanics of reliable legal AI: closed-universe workflows, bringing your own case law and evidence, and using AI for analysis rather than “knowledge.” Dan explains how prompting has shifted from brittle prompt engineering toward giving the tool an assignment like you would a colleague, plus the importance of iterating and pressing on what doesn’t smell right. Adam shares how this changes trial prep, including using AI as a speed reader for testimony, stress testing briefs by drafting neutral orders, and finding the handful of swing facts that actually decide outcomes. Then we get concrete on simulations: adopting witness personas to practice depositions, modeling opposing experts (especially in spreadsheet-heavy financial disputes), and using AI-driven mock juries to run thousands of deliberations, test themes, and refine openings over the life of the case. We also talk client-facing litigation command centers, confidentiality and enterprise security, and why alternative fee arrangements may finally get real momentum as AI reshapes litigation economics. If you’re building an AI strategy for litigation, subscribe, share this with a colleague, and leave a review with the biggest workflow you want to improve next. This episode is also available on YouTube and we couldn't be more excited. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

September 13, 2026Episode 12949 min

Beyond the Billable Hour: The Business of Litigation with Jonathan Sablone

The billable hour isn’t dead—but the way clients think about paying for legal work is changing. In this episode, I’m joined again by Jonathan Sablone of Sablone Advisory LLC to talk about the business side of litigation: what lawyers charge, what clients actually want from their fee arrangements, how companies manage legal spend, and what happens when litigation itself becomes an investment. We start with attorney fees. Jonathan walks me through fixed fees, capped fees, value-based pricing, and the monthly fixed-fee model he uses as fractional general counsel. One theme comes through pretty clearly: for clients, the issue isn’t always getting the lowest possible price. Certainty and value matter. Knowing what something will cost—and what you’re getting for that money—can be just as important. Of course, litigation has a habit of making budgets difficult. The other side gets a vote, cases evolve, and a matter that looked manageable can turn into scorched-earth litigation. We talk about the tradeoffs that come with alternative fee arrangements, how pricing can affect staffing and incentives, and the pressure in-house legal departments face to stay within budgets while defending the company. Then we turn to litigation finance , particularly how corporations use third-party funding to pursue affirmative claims without consuming the legal budget they need for defense work. Jonathan explains how funders evaluate cases, why having a strong claim is only the beginning, and why economics, strategy, timing, risk, and potential return all matter. We also get into litigation finance as an alternative asset class, why institutional investors are attracted to its potential returns and lack of correlation with broader markets, and how delays in the court system can change the investment equation. And if a company thinks it has a case worth funding? Jonathan has some practical advice: don’t just call a funder and dump a million documents into a data room. Prepare the case for funding first. Understand the economics. Explain the strategy and timeline. And identify the weaknesses before the funder finds them. It’s a conversation about legal fees, litigation budgets, risk, return, and the increasingly sophisticated economics behind modern litigation. Jump in to hear Jonathan’s perspective on what clients really want from their lawyers, how litigation finance is changing the options available to companies, and why the business of litigation deserves as much attention as the legal strategy itself. If you enjoy the episode, subscribe, share it with a colleague, and leave a review. And I’d be interested to hear: What fee arrangement—or litigation funding model—have you seen work particularly well? ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

August 27, 2026Episode 12837 min

When Algorithms Find Fraud: The New False Claims Act with Tom Suddath and David Bender

A False Claims Act case used to conjure up an insider with evidence of fraud. Increasingly, it may start somewhere very different: a public dataset, a spreadsheet, and an algorithm looking for patterns. In this episode, I’m joined by Tom Suddath and David Bender of Reed Smith to talk about data-driven FCA litigation and DOJ’s Focus Initiative—Broad Oversight Through Careful Use of Statistics —and what it could mean for healthcare enforcement in 2026 and beyond. Healthcare is particularly fertile ground because Medicare and Medicaid generate enormous volumes of billing data. But spotting an unusual pattern and proving fraud are two very different things. We get into the role of Rule 9(b), the importance of pleading fraud with particularity, and perhaps the hardest question for a case built largely on statistics: How do you prove someone knowingly submitted a false claim? We also talk about AI’s role on both sides. The same tools that can help uncover patterns and build a complaint can help defendants find counterexamples, test assumptions, and offer innocent explanations for seemingly suspicious data. For healthcare organizations, there’s a practical lesson here too: the data being mined by potential relators can also be used internally to identify compliance problems before someone else does. Jump in for a conversation about False Claims Act enforcement, healthcare fraud, data mining, AI, and what happens when an anomaly becomes the beginning of a fraud case. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

August 23, 2026Episode 12727 min

How AI Is Transforming the Practice of Law with Cristin Traylor

AI is moving into legal practice at remarkable speed, but there’s a big difference between experimenting with a new tool and trusting it with work that could affect a case, a client, or a legal decision. My guest is Cristin Traylor of Relativity , who brings an especially useful perspective to that question. Cristin spent more than two decades developing discovery strategy in complex litigation before moving into legal technology and artificial intelligence. Today, she works with law firms and corporate legal departments on the practical application of generative AI in discovery and other legal workflows. We talk about where AI is already delivering real value for lawyers—and where some of the enthusiasm may be getting ahead of the technology. Cristin explains why defensibility and validation remain so important when AI enters the legal process, what lawyers need to understand before relying on AI-generated results, and why adopting these tools doesn’t eliminate the need for human judgment. We also get into the changing role of lawyers as AI takes on more of the work traditionally associated with reviewing, organizing, and analyzing large volumes of information. What should lawyers still be doing themselves? Where can technology make them better and more efficient? And how should legal teams evaluate the growing number of AI products promising to transform the way they work? It’s a conversation about AI, discovery, legal judgment, and how to distinguish meaningful innovation from hype as the profession works through a technological shift that is still very much underway. Jump in to hear Cristin’s perspective on what generative AI can—and can’t—do for legal teams, how to approach it responsibly, and what its continued evolution could mean for the practice of law. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

August 16, 2026Episode 12626 min

The Texas Two-Step: Testing Bankruptcy Law and Jury Rights with Adam Silverstein

What happens when a company facing billions of dollars in mass tort claims is still financially healthy—but turns to bankruptcy anyway? In this episode, I’m joined by plaintiff lawyer Adam Silverstein of Otterbourg to talk about the Texas two-step , a restructuring strategy that can move mass tort liabilities into a separate subsidiary, put that entity into Chapter 11, and shift thousands of claims from jury trials into bankruptcy court. We use Johnson & Johnson’s talc litigation as a jumping-off point, including its unsuccessful LTL bankruptcy filings and the question courts keep coming back to: Is the debtor actually in financial distress, or is bankruptcy being used to manage litigation? We also get into J&J’s third attempt, prepackaged bankruptcy voting, and how the Supreme Court’s Purdue decision changed the landscape for nondebtor releases. Adam also takes us to North Carolina, where other two-step bankruptcies have kept mass tort claims—many involving asbestos—tied up for years. That leads us into a harder part of the conversation: not everyone on the plaintiffs’ side sees these cases the same way. When litigation can stretch on for a decade or more, certainty can have its own appeal. It’s a conversation about mass torts, Chapter 11, corporate restructuring, and what happens to the right to a jury trial when bankruptcy enters the picture. Jump in to hear Adam’s perspective on where the Texas two-step stands, why courts have pushed back, and what may come next. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

August 4, 2026Episode 12538 min

The Hidden Danger of Carbon Monoxide: Proving Exposure, Brain Injury & Liability with Sam Cannon

Carbon monoxide poisoning is one of the most dangerous—and most overlooked—sources of catastrophic injury. Because it's odorless, colorless, and often mistaken for the flu, victims may not realize they've been exposed until long after the evidence has begun to disappear. That reality creates unique challenges not only for families, but also for the attorneys trying to prove what happened. In this episode, I speak with Sam Cannon of Cannon Law about the complexities of carbon monoxide poisoning litigation and why these cases often involve far more than a faulty appliance. We discuss how deferred maintenance, inadequate safety practices, and layered ownership structures can combine to create dangerous living conditions—and why proving liability often requires identifying multiple responsible parties. Sam also explains the science behind carbon monoxide exposure, why injuries can be difficult to diagnose, and how advanced imaging, toxicology, atmospheric readings, and expert testimony help establish both exposure and long-term brain injury. We also explore common defense strategies, the critical role of expert witnesses, and why these cases frequently become battles over causation as much as negligence. Whether you're a plaintiff attorney, defense lawyer, insurance professional, or simply interested in how invisible hazards become complex litigation, this conversation offers practical insights into one of the most technically challenging areas of personal injury law. Jump in to hear Sam's perspective on carbon monoxide litigation, proving brain injury, and the litigation strategies that shape these high-stakes cases. Thanks to Sam Cannon for joining me and sharing his experience and insights into this important—and often overlooked—area of litigation. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

June 14, 2026Episode 12442 min

HIPAA Meets Social Media Marketing with Liz Heddleston and Leah Stiegler

In this episode, I get to speak with Liz Heddleston and Leah Stiegler of Woods Rogers about a healthcare compliance issue that many organizations may be underestimating: the HIPAA risks created by modern marketing practices . Healthcare providers increasingly rely on social media, patient testimonials, online success stories, influencers, user-generated content, and even AI-assisted marketing tools to build visibility and connect with patients. But as recent enforcement activity demonstrates, these efforts can create significant HIPAA exposure when protected health information is disclosed without proper authorization. Our conversation uses the recent OCR enforcement action involving Cadia Healthcare Facilities as a starting point. OCR alleged that patient names, photographs, and treatment information were publicly shared through online success stories without valid written HIPAA authorizations. The resulting settlement serves as a reminder that positive intent, patient enthusiasm, and informal consent do not eliminate HIPAA obligations . Liz and Leah help unpack what went wrong in the Cadia matter and explain why healthcare organizations should be paying close attention. We discuss: Common misconceptions about de-identification The growing risks associated with social media and AI-generated content The compliance challenges created by marketing vendors, agencies, and influencers Where OCR enforcement may be headed next One of the key themes throughout the discussion is that HIPAA compliance is no longer just an IT or cybersecurity issue . As healthcare organizations expand their digital presence, privacy compliance must become part of the content creation and marketing process itself. Whether you're a healthcare executive, compliance officer, in-house counsel, privacy professional, marketer, or outside advisor, this conversation offers practical guidance on navigating the intersection of healthcare privacy, digital marketing, and regulatory risk. Jump in to hear Liz and Leah's insights on HIPAA compliance, healthcare marketing, and the emerging risks organizations should be addressing before an enforcement action brings them into focus. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

June 5, 2026Episode 12327 min

Bridge Funding for Injured Plaintiffs with Milestone Foundation's Rachel McCarthy

In this episode, I speak with Rachel McCarthy , Executive Director of the Milestone Foundation , about a challenge that often sits quietly in the background of personal injury litigation: how injured plaintiffs manage financially while waiting for their cases to resolve. Litigation can take months or years to reach a settlement or verdict. During that time, plaintiffs may face mounting medical bills, housing expenses, transportation costs, and lost income. Financial pressure can create significant hardship and, in some cases, influence settlement decisions. Rachel explains how the Milestone Foundation was created to address this issue through a nonprofit model that provides low-interest, non-recourse advances designed to help plaintiffs cover essential living expenses while their cases proceed. We discuss how plaintiff funding differs from litigation finance, why many attorneys remain skeptical of the industry, and what makes nonprofit funding models different from traditional providers. Rachel also explains the mechanics of simple versus compounding interest, the importance of understanding funding agreements, and the questions attorneys should ask before recommending funding options to clients. In addition, we explore emerging regulatory efforts, including new state-level consumer protection measures, and discuss the broader access-to-justice implications of helping plaintiffs withstand the financial pressures that can arise during lengthy litigation. Whether you are a plaintiff attorney, litigation professional, consumer advocate, or simply interested in how economic realities intersect with the civil justice system, this conversation offers valuable insight into a topic that affects thousands of litigants every year. Jump in to hear Rachel's perspective on ethical plaintiff funding, consumer protection, and how financial support can help plaintiffs and their attorneys see cases through to a more appropriate resolution. Tom Hagy Host of The Emerging Litigation Podcast ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site

June 3, 2026Episode 12248 min

What Has Happened to Law Firms with Mark Zauderer

In this episode, I get to speak with Mark C. Zauderer , a long-time, highly regarded legal professional, to explore the profound changes that have reshaped the legal industry over the past five decades. From the rise of mega law firms to the shift from a profession rooted in tradition and values to a business focused on profitability, Mark offers a candid and insightful look into the substantive ways law firms have changed – in both negative and positive ways. We discuss how the centralization of management in large firms has diminished the voice of individual partners and altered the dynamics of decision-making. Mark also sheds light on the decline of mentorship and training for young lawyers, as firms prioritize cost efficiency over professional development. He shares his perspective on how these changes have impacted the quality of legal services and the trust between lawyers and their clients. Additionally, we delve into the growing influence of political and social pressures on law firms, including the challenges posed by recent executive orders targeting diversity, equity, and inclusion (DEI) initiatives. Mark examines how these external forces are shaping the priorities and values of the legal profession. Whether you're a legal professional, a law student, or simply curious about the inner workings of modern law firms, this conversation offers a thought-provoking glimpse into the business of law and its implications for the future of the profession. Jump in to hear Mark’s insights and reflections on what’s next for the legal industry. ______________________________________ Thanks for listening! If you like what you hear please give us a rating . You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedIn Emerging Litigation Podcast on LinkedIn Emerging Litigation Podcast on the HB Litigation site