Litigation Radio

As the year winds down, it’s a good time to take stock of your life as both a person and a litigator. Are you going in the direction you want, are you shortchanging one aspect of your life to benefit another? Is it working for you? Guests Anne Marie Seibel and Paula Hinton are experienced and highly successful litigators who explain how they learned to balance family and careers, professional goals, and personal aims. There are times when one part of your life demands your full attention, and then there are times when it’s acceptable to say “no” to a request.  Learning to follow mentors, listen to colleagues, and balance family is an art. A big part of this is building your “board of directors,” people you trust to give you honest feedback, people you can lean on for both support and guidance.  Your life, professional and personal, is a marathon, not a sprint. Take a moment now and then to listen to yourself and your “team” to learn where you are, where you’re going, and what you want. Life throws a lot at you – sometimes things you can’t control, like the COVID pandemic – and each challenge can take control of your career and your life if you let it. Take charge of your life.  Resources: Previously on Litigation Radio, “Step by Step: How a Prominent Litigator Build Her High-Profile Career" American Bar Association American Bar Association Litigation Section

When is it time, and how do you know, to step back from your busy, often hectic, law practice and move on to a new chapter. And how do you prepare? Guests Charla Stevens and David Soley have both been highly successful attorneys in New England. Stevens moved on from her work at a law firm to establish a consulting firm, Charla Stevens Consulting. Soley continues to work at the firm Berstein Shur and is the author of the American Bar Association book “Transitioning to Happiness: Type A Lawyers and Retirement.” Soley says lawyers should start preparing now. Being a trial lawyer is a passion, but it’s important to regularly take stock and reflect on your situation. How do you feel? Are you still excited? What would you do if you were no longer a lawyer? It’s important to stay in touch with yourself and create a plan for your second act so that you’ll have an “escape hatch” when you realize it’s time to go. Don’t wait for the last minute. Stevens’ former firm even encouraged litigators to think ahead and understand how many hours they want to work. Hear how she learned to recognize the factors that nudged her to step away and engage in something new. The loss of empathy, stress even outside the workplace, headaches, and even lack of sleep can all be warning signs. We know good litigators are “Type A,” people. And our guests agree a rocking chair isn’t the answer for many of us. Hear how you can identify your other passions, outside the law, and pursue them. Make a list, make a plan, get excited. Consulting, writing, travel, sports, volunteering, teaching? They can offer a fulfilling way to engage and excel. There is life outside the courtroom. Resources: Coastal Maine Botanical Gardens Bernstein Shur website American Bar Association “Real Estate Litigation Handbook” by David Soley “Transitioning to Happiness: Type A Lawyers and Retirement,” by David Soley Charla Stevens Consulting website American Bar Association American Bar Association Litigation Section

Berkeley Research Group (BRG) is a Premier Sponsor of the ABA Litigation Section. On this Litigation Radio episode, we will hear from Jeffrey Klenk, Managing Director of BRG, about hiring economists as experts. The selection of the BRG as the subject of this interview should not be construed as an endorsement by the American Bar Association of BRG and its services. ----- More than 10,000 federal class action cases were filed last year, covering a range of areas including securities, antitrust, employment, and consumer protection. What do they have in common? They often rely on an economist’s expert analysis and testimony. So how early should you hire an economist to pick through the data?  Guest Jeffrey Klenk, a managing director with the consultant firm Berkeley Research Group (BRG), shares best practices for working with an economist expert witness.  Hear how an economist can help litigators, judges, and juries understand what matters in a case by dissecting transaction-level data, valuations, and the impact of outside influences you may not have considered. Here’s a spoiler: Klenk says it can be “fiendishly difficult” to not only understand the merits of a case but also the viability as a class action for both the defense and plaintiffs.  From analyzing a case’s potential before filing, to focusing depositions, and to courtroom testimony, an economist can be a litigator’s most valuable tool. When economists and attorneys work together, good things can happen.  Plus, a “quick tip” from Latosha M. Ellis of the firm Hunton Andrews Kurth on professional civility. You don’t have to agree with, or even like, everyone. But remember, what goes around comes around. Resources:  “Goldman Sachs Settles 2014 Class Action Lawsuit Tied To Metal Trades” “Court Rejects Antitrust Suit In Victory For Comcast”  Berkeley Research Group (BRG) “United States - Economist's Perspective (2023/2024): Class Actions – Litigation, Policy and Latest Developments” by Noureen Akber, Jeffrey Klenk, and Mike McDonald 2024 Professional Success Summit, American Bar Association  “About Section 337,” United States International Trade Commission American Bar Association American Bar Association Litigation Section

Let’s look at two recent Supreme Court cases impacting the role and powers of federal regulators. After decades of accepted areas of law that deferred to federal regulators, we are witnessing a shakeup through rulings on the so-called Chevron Deference and the Corner Post decision. How will these landmark rulings change the power held by agencies?  The modern regulatory state of the federal governments evolved after the Great Depression during the New Deal to tighten lax oversight blamed for many elements that led to the Depression. As new agencies were created, regulators came to enforce developing legislation, such as the Securities Exchange Act and labor rules. Seventy plus years later, we have our alphabet soup of federal agencies. Expect a slew of new challenges and litigation to follow. “It is impossible to overstate what a complete wreck this is going to make of everything,” says guest and associate professor of administrative law Gwendolyn Savitz, calling the effect of the rulings “calamitous.” How can legislators put the toothpaste back in the tube? “Chevron’s a big deal, it’s reversal’s a big deal,” adds guest and regulatory law veteran Paul Weiland. If you’re involved in regulatory law, you can’t miss this episode. Resources: “Reassessing Administrative Finality: The Importance of New Evidence and Changed Circumstances,” by Gwendolyn Savitz Administrative Procedures Act, Cornell Law School “Loper Bright, Skidmore, and the Gravitational Pull of Past Agency Interpretations,” Yale Journal of Regulation  Chevron U.S.A. v. Natural Resources Defense Council, via Justia Corner Post, Inc. v. Board of Governors of the Federal Reserve System, SCOTUSblog Loper Bright Enterprises v. Raimondo, SCOTUSblog Magnuson-Stevens Fishery Conservation and Management Act, NOAA “The Supreme Court Ends Chevron Deference – What Now?” NRDC American Bar Association American Bar Association Litigation Section

It’s summertime, and that means it’s time for law student summer associate and clerkship programs. If you’re a law student, hear from two successful lawyers who used summer associateships to launch bright careers. Guests Monica Latin and Debrán O'Neil are partners at Carrington Coleman Sloman & Blumenthal LLP in Dallas. Latin is now the managing partner while O’Neil is the hiring partner who oversees the firm’s summer associate program.  Together, the two provide real-life tips for students in associate programs. Hear the things they look for in an associate and clerk and how these programs lead to job offers. Associateships and clerkships are opportunities often not available to students in other career paths. Make the most of them.  In a summer program, remember your goals. Do good work and build relationships. Remember why you’re in an associateship or clerkship. Hear what firms are looking for and how they judge performance. These programs are job interviews. Not just for the firm but for students exploring the firm. Learn what makes a good cultural fit. Both sides are observing each other.  Attitude is everything. Be positive. Say yes to opportunities. And make the most of your summer program.  Resources: Carrington Coleman Sloman & Blumenthal LLP American Bar Association American Bar Association Litigation Section

America’s banks play a critical role in our economy, and the industry is one of the most heavily regulated, with rules that affect nearly every consumer, borrower, and saver. In this episode, enjoy a deep dive into the web of regulations banks navigate daily and the role that litigators play. Guests Aaron Krauss and Brett Watson participated in the development of the ABA’s new book, Banking on It: The Ten Most Common Claims Involving Banks. Banking on It is a practical guide to navigating banking litigation. Aaron and Brett are experienced in litigating fraud, credit issues, and lending cases involving banks and financial institutions. Banking litigation usually involves institutions such as credit unions, commercial and retail banks, and even nationally and state-chartered banks. It’s an area full of opportunities for litigators interested in banking regulatory law and the constantly shifting landscape. For example, when was the last time you wrote a check to pay for something? It’s a jungle out there. Anything can happen in the world of banking regulation and litigation. Scams are common, and banks are frequent targets. Tune in to this episode and learn more! RESOURCES: Cozen O’Connor “Banking on It: The Ten Most Common Claims Involving Banks” “How Banks Should Respond To Calif. AG's Overdraft Warning,” Law360, by Brett Watson Law360 articles by Aaron Krauss American Bar Association American Bar Association Litigation Section

Round Table Group is a Premier Sponsor of the ABA Litigation Section. On this Litigation Radio episode, we will hear from Dan Rubin, National Business Development Manager of Round Table Group, about using third parties in expert searches. The selection of the Round Table Group as the subject of this interview should not be construed as an endorsement by the American Bar Association of the Round Table Group and its services. ----- Expert witnesses can play a pivotal role in litigation, offering insights and testimony that can make or break a case. But where do you find them, and how do you ensure it’s the right one?  Guests Genevieve M. Sauter of Noonan Lance Boyer & Banach LLP, and Dan Rubin, national business development manager for the expert witness search and referral firm Round Table Group, share their insights on locating and presenting the right experts.  What are litigators looking for when they select an expert witness? Decades of experience? Advanced degrees? Sure. But also important are intangibles such as geographic location, experience, relatability, manner, and presentation skills.  Hear how attorneys search for, test, and select the best experts to match each case. If your case depends on not just expertise, but also how well a jury and judge will understand that expertise, you must dedicate time to the crucial stage of selecting the right expert.  Best practices, fees, contracts, discovery, and preparation. It’s all in this episode. Every step will make the difference between winning your case and missing the mark. Resources: Previous episode, “You Need An Expert Witness, But Where Do You Find One?”  The Round Table Group Noonan Lance Boyer & Banach ABA Pretrial, Practice & Discovery Committee American Bar Association American Bar Association Litigation Section

Being a lawyer involves constant pressure and stress. It’s a profession filled with challenges—everything from demanding partners and tight deadlines to adverse rulings and deadbeat clients. It’s enough to wear down anyone.  Guest Erin Clifford is a partner and director of marketing and business development at Clifford Law Offices in Chicago. And she’s also a trained and nationally certified counselor and wellness coach, helping professionals create and maintain healthy lifestyles. As a lawyer, she knows all about stress. As a counselor, she knows the importance of mental and physical well-being. Feeling stressed and overwhelmed can lead to health problems and even substance abuse. It’s easy to fall down a rabbit hole at the cost of simply living a happy, healthy life. Hear Clifford’s tips for improving your outlook, enjoying happy moments, and creating time for yourself and the things that make you happy. Though we sometimes lose sight of it, we are all much more than our law practice. Do you know the signs of chronic stress and stress-related illnesses? Learn how to build resilience, set aside stress, and live a healthier life. Be kind to yourself. Resources: “Setting Boundaries Can Lead to a Happier, Healthier, and Wealthier Life,” by Erin Clifford, American Bar Association American Bar Association American Bar Association Litigation Section

Generative AI is everywhere, including inside many law practices, creating documents, analyzing data, researching, and creating content. But what happens when AI makes a mistake? Who’s liable? The implications could be enormous, are we may see a new wave of liability litigation. It’s a brave, new world without a lot of legal guardrails.  There are existing, vague, nonspecific “tech” and business practice laws, then there emerging – AI specific – laws that aren’t backed by a lot of precedent from the courts. Privacy laws, data usage, intellectual property laws, even state and federal rulings, have created a jigsaw puzzle for lawyers to apply in the AI space.  Guest Graham H. Ryan is an experienced litigator and an author and frequently quoted commentator on tech issues and the emergence of generative AI and its consequences. Ryan says it might help to look back to the “wild west” of the Internet’s earliest days and the infamous “Section 230” that has helped decide who’s liable for what when it comes to digital content. How far does Section 230 go when AI starts creating content instead of simply searching for it? And when does Congress get involved? Proceed with caution. Resources: International Association of Privacy Professionals, IAPP IAPP “AI Governance Global 2024” conference “The AI Industry Is Steaming Toward A Legal Iceberg,” Wall Street Journal quoting Graham Ryan Harvard Journal of Law and Technology “Department Of Justice’s Review Of Section 230 Of The Communications Decency Act Of 1996,” U.S. Dept. of Justice Moody v. NetChoice, LLC, via SCOTUSblog “Sanctions for Fake Generative AI Cites Harm Clients,” Bloomberg Law Analysis “The EU Artificial Intelligence Act”  “Schumer Launches New Phase In Push For AI Bill,” Politico American Bar Association American Bar Association Litigation Section

Litigators are used to being in front of a jury. But have you ever wondered what it’s like to be a member of that jury? What are jurors watching? What do they notice? Guest Chauntis Jenkins-Floyd, an experienced litigator, recently served on a jury. And what she learned as a juror is eye opening.  Like most of us, Jenkins-Floyd has been summoned for jury duty and dismissed each time. But this time was different. In this episode, she describes her experiences in the selection process, intake, and deliberation.  Jenkins-Floyd took it all in. She learned about the jobs and childcare pressures jurors have. She saw what happens in the jury room. “All of my senses were tingling. As a trial lawyer, I never get to see this part,” she explains. What she learned will change how you present your next case.  Hear how important your moves are to a jury, starting the moment you enter the courtroom. Eye contact, body language, and even where people sit. Everything matters. How prepared and confident do you look? How friendly and comfortable are you with your client? Jenkins-Floyd explains what jurors are watching. How you ask questions, starting with voir dire, sets up jurors and helps them subconsciously put themselves in your client’s shoes, even without saying it. Jurors watch and see everything you do. Get an inside peek. Resources: American Bar Association American Bar Association Litigation Section