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15 Litig. News 1 (1989-1990)

handle is hein.journals/lignws15 and id is 1 raw text is: OCTOBER 1989 VOLUME 15, NUMBER I LITIC ATIO N NEWS A PUBLICATION OF THE SECTION OF LITIGATION AMERICAN BAR ASSOCIATION Section Supports Commission on Mass Torts Report Proposals place mass tort cases in single forum, avoid separate adjudications in multiple courts by Christine E. Sherry, Associate Editor The ABA Commission on Mass Torts has recommended Congressional legislation to establish a federal judicial panel to manage mass tort litigation. In a lengthy report to the ABA House of Delegates, the Commission, chaired by Litigation Section member Robert F. Hanley of Denver, issued 13 specific recommendations to the House of Dele- gates relating to the management of mass tort litigation. The Litigation Section strongly sup- ported the report, which was presented to the House of Delegates in Hawaii in August. The House deferred action on the report until February. The Commission's recommendations range from the establishment of a federal judicial panel to specific proposals lbr handling punitive damage claims. The Commission's findings focus on ways to prevent or reduce duplicative and inconsistent relitigation of the same issues in a mass tort context, according to Professor Frank F. Flegal of George- town University Law Center, reporter to the Commission. As the report states, its fundamental premise is that separate adjudication of individual tort claims arising from a single accident or use of or exposure to the same product or substance is ineffi- cient and wasteful, seriously burdens both state and federal judicial systems, poses unacceptably high risks of incon- sistent results, and contributes to public dissatisfaction with the tort law system and the legal profession. The report goes on to develop a 'comprehensive program for consolidation and effective management of mass tort cases before a single court. An important feature of the program is establishment of a federal judicial panel empowered to make an initial de- termination as to whether some or all in- dividual cases should be consolidated before a single federal court for some or all purposes. If consolidation is di- rected, that court would have broad authority to manage the litigation and would be empowered, but not required, to resolve all issues, including liability and damages. The report also includes specific rec- ommendations addressed to jurisdiction and choice of law in mass tort litigation, punitive damage claims, expert and sci- entific testimony. management of con- solidated mass tort litigation, and litiga- tion fees and expenses. For punitive damage claims arising in mass tort litigation, for example, the Commission recommends federal legis- lation permitting consolidation of all punitive damage claims against Ihe same defendant that involve the same or sub- stantially similar conduct, and providing that damages may be awarded only on clear and convincing proof that the de- (continued on page 5) Section To Examine Lawyers' Ancillary Business Activities by Mary E. Murphy, Associate FEditor T he Section of Litigation's Task Force on Ancillary Business Activity has taken a lead position in the ethical debate concerning lawyers' affiliations with non-legal professionals. Task Force Chair Dennis J. Block, New York City, said the seven-nember Task Force's intent is to examine the issue of whether such affiliations are likely to effect ad- versely the independence and profes- sionalism of attorneys. Block is on one side of the issue, arguing that lawyers' involvement in business activities inherently raises ethical problems. including ihreats to independent judgment, conflicts of inter- est, and the deterioration of the quality of legal work. All of this reflects poorly on lawyers' professional image at a time when the bar is seeking to improve its image, he said. The principal forns of business activ- ity that concerns Block and others op- posing affiliations are finis operating businesses that provide services ancil- lary to the practice of law; significant in- vestments by law finns in their clients' businesses; and lawyers serving on the boards of directors of corporate clients. Block hopes the Task Force, and sub- sequently the Section and the ABA House of Delegates, will adopt a series of resolutions that would require, among other things, that law firms refrain from engaging in or owning non-legal busi- nesses. On the other side of the issue is G. Marc Whitehead, Minneapolis, MN, who believes that the recent impulse of attorneys to own or participate in non- legal businesses is a genie that has the power to do much good. Whitehead, Co-Director of the (contlinued on vage 8) Special Insert: Resources for Litigators Selected Unpublished Papers by Section Members

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