Indianapolis Litigation Blog

by: Jeff S. Gibson, Attorney

Rarely does a month go by without a pharmaceutical or medical device company making headline news for illegal marketing or failing to disclose dangerous side effects of its products. Many times the conduct is so egregious you are left wondering how a drug or device even made it to the market in the first place. Surely the Food and Drug Administration (FDA), the worldwide regulatory "gold" standard, would not have approved a product that was bad for us? Conventional wisdom tells us that the FDA is the gatekeeper for our safety. The FDA monitors and tests all products so its rubber stamp of approval must be absolute proof that consumers are safe? Unfortunately, this is an example where perception varies greatly from reality.

Let's talk about what the FDA is not. The FDA is not a lab with scientists in white lab coats and Bunsen burners. The FDA is not in charge of running studies to determine the safety and efficacy of products. The FDA does not independently test the products we consume.

So, what exactly does the FDA do? The FDA is an administrative agency that oversees not only medical device and pharmaceutical products but also food safety, tobacco products, dietary supplements, over-the-counter pharmaceutical drugs, vaccines, biopharmaceuticals, blood transfusions, electromagnetic radiation emitting devices , veterinary products, and cosmetics. While the FDA oversees and monitors all of these products, it initially relies on the product manufacturer to provide data and evidence regarding safe and effective use of the products it wants to market. The FDA reviews this data to ensure a reasonable measure of product safety and allows the product to be marketed to the public. Think of the FDA as a giant filing cabinet. If a company provides accurate and truthful information and data, the process works. If a company hides or misleads the FDA, the result can be devastating. In short, junk in, junk out.

When information is omitted or modified, serious injuries can occur. After initial market approval, the FDA provides ongoing oversight for product safety in the form of data collected through its adverse events reporting system. Consumers and health care professionals are encouraged to report any adverse reactions or problems associated with products that are regulated by the FDA. These reports are then reviewed to identify any trends in injuries associated with specific products. When trends are identified, the FDA can recommend additional product testing, issue an increased safety warning, or order a manufacturer to remove its product from the market. Reports that cite serious injuries or death due to a defective product are quickly investigated to determine necessary actions to protect public health.

The FDA has a hefty job to do. To be fair, the FDA is filled with talented and dedicated employees that take their job seriously. However, the FDA is overwhelmed, overworked and underfunded. These are shortcomings that must be addressed. However, it is the responsibility of the manufacturer to act in an honest, ethical and responsible manner when they know their products are proving to be dangerous. So, the next time you read a news headline about a dangerous medical device or drug, remember what the FDA is and is not.

by: Michael J. Blinn , Attorney

Repudiating a District Court holding to the contrary, the Indiana Supreme Court recently confirmed that employers may enforce their rights under standard noncompete agreements without fearing a counterclaim under the state's Blacklisting Statute. On a certified question from the U.S. District Court for the Southern District of Indiana, Loparex, LLC v. MPI Release Technologies, No. 94S00-1109-CQ-546 (Ind. Mar. 21, 2012), the court clarified Ind. Code § 22-5-3-2 in three respects. Most significantly, it held that an unsuccessful suit by an employer to preclude competitive employment by a former employee is not a basis for recovery under the statute. Additionally, the court held that a person voluntarily leaving employment is not precluded from seeking relief under the statute, overruling Wabash R.R. Co. v. Young, 69 N.E.2d 1003 (Ind. 1904). Finally, the court held that attorney fees incurred by the employee in litigation with his former employer would not be recoverable compensatory damages in any event. In Loparex, the court for the first time articulated a standard governing claims under the statute, and placed significant limits on the statute's reach.

Background
Loparex arose from a dispute between Loparex, a corporation in the "release liner" industry, and Odders and Kerber, two former Loparex employees. This industry, the court explained, "involves products such as nametags with peel-off backings, window films, and roofing underlayment," Loparex at 3 n.2, and the "formulas involved in these products are apparently closely guarded trade secrets." Id. Odders and Kerber both had detailed knowledge relating to Loparex's confidential sales and technical information, and both were subject to one-year noncompetition agreements. Id. at 3.

Loparex fired Odders in September 2008. It would later allege that during the ensuing year, Odders met with MPI, a Loparex competitor, in violation of the noncompetition agreement. Odders began working for MPI in September 2009. That same month, Kerber resigned from Loparex and immediately began working for MPI.

After sending cease-and-desist letters to Odders and Kerber, Loparex sued both, along with MPI, in the U.S. District Court for the Southern District of Indiana. Although the opinion refers to the cease-and-desist letter, it does not discuss their significance. Loparex initially sought to enjoin MPI from employing Odders and Kerber, although it later withdrew that request, and it "apparently offered to dismiss its suit if MPI agreed to terminate the employment of Kerber and Odders." Loparex at 4. Kerber and Odders filed counterclaims against Loparex under the Blacklisting Statute, and sought damages including the attorney fees they incurred in defending against the Loparex suit. The District Court would eventually grant summary judgment to Kerber and Odders on Loparex's claims, and certified three questions relating to the counterclaims to the Indiana Supreme Court.

1. A lawsuit to protect trade secrets cannot give rise to a blacklisting claim.
The most significant holding in Loparex lies in its discussion of the third certified question. Here, the Supreme Court articulates a list (though apparently nonexhaustive) of actions prohibited by the Blacklisting Statute, and determines that a lawsuit to protect trade secrets is not prohibited conduct. The court specifically rejects claims that the Blacklisting Statute prohibits employers from suing former employees in bad faith to prevent them from obtaining employment. To the contrary, it holds, a host of common-law torts, fee-shifting statutes, and procedural rules provide adequate protection from sham litigation. Loparex at 17. The court effectively limits statute either to a literal list of employees to be denied employment, or conduct that that accomplishes the same result as a traditional blacklist - circulating information about employee behavior or associations among employers, with the intent to deny the employees jobs - without using an actual list.

After analyzing both the history of Indiana's statute, and a variety of other authorities, the Supreme Court articulates the standard governing claims under the Blacklisting Statute, which forbids employers both to "black-list" discharged employees, and to "attempt by words or writing" to prevent the employee from obtaining employment elsewhere. See id. (citing Ind. Code § 22-5-3-2). The "specific prohibition - the actual blacklist - is best defined as a list of one or more workers, circulated by employers, who are to be refused employment or otherwise marked for special avoidance, antagonism, or enmity, because those workers are reputed to hold opinions or engage in actions contrary to the employers' interests." Id. at 21.
Holding that "the more general language would encompass only those activities of a like kind or class to the classic manner of blacklisting," the court finds "a series of underlying commonalities which are helpful guides" for interpreting the "attempt by words or writing" provision of the statute. Id. The court identifies several examples of "impermissible conduct" including "an identification of past employees based upon their conduct, association, or belief; the transmission or exchange of that information by or between employers in the same industry; and doing so with the wrongful intent to inhibit or prevent a listed employee from obtaining future employment within that industry." Id.

The Supreme Court restated the certified question as "whether a lawsuit to protect alleged trade secrets, brought by an employer against a former employee, falls within the framework of the blacklisting prohibitions we discuss above." Id. at 22. Finding that it does not, the court repudiates Bridgestone/Firestone, Inc. v. Lockhart, 5 F. Supp. 2d 667 (S.D. Ind. 1998), which reached the opposite result, for three reasons. First, that case "effectively creates a form of per se blacklisting" whereby an unsuccessful lawsuit by an employer could give rise to blacklisting liability. Id. at 26. Second, that case took too broad a view of the scope of the Blacklisting Statute. Id. at 27. Finally, Lockhart predated a pair of Indiana Court of Appeals decisions on the issue, and the court's most recent analysis, and so lacked guidance as to the proper interpretation of the statute. Id.

Superficially, this certified question addresses only whether lawsuits to enforce noncompete agreements may constitute illegal blacklisting. While the court mentioned cease-and-desist letters in passing, the opinion does not analyze them in any detail, so Loparex does not specifically address whether an employer would be safe from a blacklisting claim if a new employer acted on a cease-and-desist letter with no lawsuit having been filed. But in ruling as broadly as it did, the court placed strict limits on the conduct prohibited by the statute, essentially limiting it to an express blacklist, or conduct that does everything a blacklist does but without an express list. It seems likely, therefore, that Indiana courts will permit employers to use means other than litigation to enforce these ubiquitous contracts without fear of a blacklisting claim.

by: Jeff S. Gibson , Attorney

It's easy for a young lawyer to feel overwhelmed in the first few years practicing law. From writing briefs and filing motions to reviewing documents and preparing for trial, there is very little time left for much else. However, it's important for a young lawyer to think about and plan time for business development, especially if they would like to become a partner some day.

Business development is extremely important for a firm. If there are no cases, there is no reason to hire attorneys and staff. Business comes to the firm in one of two ways: referrals from other attorneys who know you or your firm's work, or direct contact from a potential client which is usually the result of some type of marketing. For this reason, it's important that young attorneys build a strong network of professional contacts that can refer cases to them.

If your firm has a marketing department, take some time to get to know these people and ask them to help you create your personal marketing strategy and plan. If your firm doesn't have a marketing staff, then talk with the office administrator or other attorneys for some suggestions for creating a marketing plan. What's important is that you take the time to think out a strategy for building a network that can refer business to you.
I'm a big believer in "what gets measured gets done" so your strategic marketing plan needs to list specific goals and the activities that you will do to reach them. When setting goals, I like to make sure that they are SMART. This stands for:

Specific: State clearly exactly what it is that you are going to do. What are you going to do? How are you going to do it? Why are you going to do it? These questions help you define your goals.

Measureable: Make sure your goals provide a gauge for your success. How many appointments do you want to make? How many luncheons are you going to attend? How many business cards are you going to collect? Quantify your goals whenever possible.

Attainable: Your goal should be a stretch for you. Set a goal that requires you to be a bit creative but is still within grasp. This will keep you motivated and successful.

Realistic: Make sure your goal is something that can actually be accomplished. If you are traveling for depositions three out of four weeks this month, it will probably not be possible for you to have lunch with 3 people in your network this month. Be sure when you set the goal that you have the resources, in this case time, to reach your goal.

Timely: Give yourself a deadline. An example would be that you would like to attend a Bar Association event. Instead of stating your goal that way, add the words "before the end of the quarter". This way you can hold yourself accountable and achieve your goal.

It's important to note that your plan should be in writing. By committing these goals to paper, or a word document, you will have something concrete to reference. SMART goal setting is a great tool that can help you manage your activities better so you feel less overwhelmed. So be SMART about your business development activities by thinking strategically, acting creatively, and most importantly--holding yourself accountable.

by: Jeffrey A. Hammond , Attorney

Who has the greatest influence over the safety of the men and women working on a construction project? The answer may surprise you.

The owner. That's right, the owner of the project has the ability to exert the greatest influence over construction safety. The reason why is rooted in simple economic theory. The owner has a project that it wants to build and there will be countless construction companies vying to get the contract. The owner, simply put, has the power of the purse. The owner, thus, has the ability to dictate the terms of the contract and to make the final decision as to which construction company will get the job.

The Indiana Supreme Court's recent decision in Hunt Construction v. Garrett, provides a valuable lesson for safety conscious project owners. As principled and responsible project owners continue to place a high value on the safety of the men and women who build their dreams, they are increasingly willing to pay a lot of extra money to construction managers to create, implement and enforce project safety programs. By doing so, the owner adds an incredibly valuable layer of safety responsibilities on the project.

We all know and understand in our everyday work and personal lives that accountability is fundamental to all commitments. The same is true on construction projects and especially with regard to construction site safety. Accountability is an essential keystone in the arch of construction site safety.

In the Hunt Construction case, Hunt did not dispute that it accepted and assumed substantial and detailed overall jobsite safety responsibilities in its contract with the Stadium Authority. Hunt's position was that it did not agree to be accountable for fulfilling the extensive project safety responsibilities that the Stadium Authority paid it a lot of money to undertake. Hunt claimed that one sentence it added into the contract meant that it was only accountable to the owner, not to any of the workers on the project for whom the project safety program was designed to protect. However, the worker, not the owner, is the one who will suffer great harm if the construction manager fails to fulfill its extensive safety responsibilities.

Herein lies the lesson to principled and responsible project owners in Indiana and elsewhere around the country. If you are an owner who places a high value on worker safety, pay careful attention to the wording of the contract language that is being proposed to you to ensure that you are really getting what you are paying for.There are undoubtedly construction companies out there who will seek ways to evade accountability for the safety obligations you are willing to pay them to perform. If your goal is to protect the workers, seek out and hire contractors and construction managers who will do more than verbally express a commitment to worksite safety. Choose those who are willing to accept the accountability that goes along with that commitment. You have the ability to exert the greatest influence over the safety of the men and women who will be working on your project. Choose wisely. Indiana's workers and their families will thank you for it.

by: Daniel M. Witte, Attorney

We've all done it before - given a hand-signal to a driver in another car - at intersections, in parking lots, etc. But what does it mean if a collision would then result, could you then be responsible for the collision, at least in part, because of your "wave"? Our Indiana Court of Appeals recently looked at that question and answered, under the specific facts of the case before it, that yes, you can have fault for a collision as a result of a hand-signal to another driver. This decision creates new Indiana law.

In the case of Key v. Hamilton, decided on February 28, 2012, the Court of Appeals held that Key, a truck driver who conspicuously signaled an "all clear" to John Owens, who wanted to turn left in front of a line of stopped traffic, could be assessed fault for the resultant collision between Owens and Dewayne Hamilton, who was riding a motorcycle in the lane of travel next to Key.

The collision took place on State Road 9 in Madison County. Traffic was lined up at a stoplight on SR 9 at its intersection with Huntsville Road. Owens was on Market Street and wanted to turn left onto SR 9 to proceed north. Key's truck was the first vehicle stopped in the line of traffic on SR 9 north of its intersection with Market Street. Key, seeing that Owens wanted to turn left, got out of his seat, stood on his truck's door sill, and then made a conspicuous search of traffic before signaling to Owens that it was "all clear." Key obviously did not see or account for Hamilton's motorcycle, which was southbound on SR 9.

Hamilton was severely injured in the motorcycle accident collision with Owens and he subsequently brought suit against both Key and Owens. At trial, Key filed a motion to be removed from the fault consideration for the collision, saying that he owed no duty Hamilton. The trial court denied that motion and the jury ultimately found under Indiana's Comparative Fault Law that Key had 45% fault for the collision; Owens 50%; and Hamilton had 5%.

Key appealed the jury trial result and the Court of Appeals affirmed the trial court's ruling, stating that because of the steps Key took in signaling to Owens, he assumed a duty he may not have otherwise had: "Key investigated the traffic behind him before determining that it was clear for Owens to turn left. Key was not just engaging in the typical courtesy wave, indicating that he only was going to allow Owens to pass in front of him. Instead, he engaged in a thorough examination of the traffic behind him before waving Owens through, indicating that it was 'all clear.' Key genuinely believed the intersection was clear, as he testified that he would not put someone in the 'position of danger' if there was oncoming traffic. Because of this investigation on the part of Key, it was reasonably foreseeable that Owens would rely on this signal and pull into the intersection without being able to see oncoming traffic himself due to the obstruction caused by Key's truck. If there was an unseen oncoming motorist, like Hamilton, it would be foreseeable that Owens could collide with him in the intersection as a result of his reasonable reliance on Key's all clear' signal."

Under the facts of the Key case, it is now possible to have fault for waving or giving a hand-signal to another driver if a collision results. However, the Court of Appeals specifically stated that it was limiting its outcome, so as not to discourage "courteous driving": "Finding that Key owed a duty to Hamilton will not discourage courteous driving behavior in Indiana.This is so because the ordinary 'wave on' would not result in liability. This decision will not generate liability for the courteous driver who, for example, allows someone to pass through an intersection with a four-way stop sign ahead of him.That behavior does not create a relationship between the two drivers, nor should it. If that courteous driver, however, were to engage in such behavior as Key did to ensure the other driver's safety in passing through the intersection, behavior that was reasonably relied upon by Owens, then he will be held to have a duty to that other driver."

So like many things in life, the lesson here is be courteous, but be careful . . .

by: Richard E. Shevitz , Attorney

Technology has made great strides in the past several years and has given us many tools and gadgets to make our lives better. As a result, society has become more efficient and more connected than ever thanks to these advances. But what happens when something doesn't live up to the representation that is made to us?

The recent class action lawsuit against Apple regarding the Siri personal assistant brings claims on behalf of iPhone 4S owners based on important features of that personal assistant that do not work as advertised. The device, which is more expensive than other iPhone products, is designed to perform tasks based on voice commands such as turning a voice message into a text message, dialing phone numbers, scheduling appointments, and providing directions.

The lawsuit claims that Siri repeatedly failed to recognize requests or failed to execute customer requests properly, such as giving directions. The complaint filed in federal court in California claims that the assistant fails to perform a range of functions as advertised in television commercials and in other advertisements in order to market the pricier phone, such as making appointments, finding restaurants, and even teaching users how to tie a tie.

Class action lawsuits provide for claims on behalf of consumers involving matters that may not be economically worth bringing in an individual case to be brought together in one lawsuit in order to obtain a recovery on behalf of the consumers for manufacturing defects or for deceptive advertising.

In order for a case to become a class action there are a few requirements that need to be met. First, the class must be represented by one or a few individuals who bring the suit on behalf of the entire group of people who have been harmed. Additionally, there are 4 main characteristics that also need to be present:

1. Commonality--there must be one or more legal or factual claims common to the entire class.

2. Adequacy--the class representatives must adequately protect the interests of the entire class.

3. Numerosity--the class must be large enough to make individual suits impractical.

4. Typicality--the claims or defenses must be typical of the plaintiffs or defendants.

Consumers may be interested in following the case against Apple, particularly because Apple says that Siri is in beta development, which means that the feature is available for use but is considered to be in a testing phase. Stay tuned for further updates on this story.

by: Jeff S. Gibson , Attorney

People hire attorneys for many different reasons. What if you were involved in a car accident and were seriously injured? What would you do if you had a medical emergency and discovered that the cause may have been a medication that you were taking? How would you react if you learned that a medical device that was used to help your body recover from an injury actually caused life-threatening side effects or worsened your injury?

The above examples are all instances of when it would make sense to speak to an attorney. As a trial attorney, I have chosen to focus my practice primarily on representing people who have been injured due to the negligence or wrongdoing of companies that manufacture drugs and medical devices. While I also litigate other personal injury issues such as automobile accidents and wrongful death claims, I have a deep passion for and understanding of claims resulting from defective or dangerous drugs and medical devices. In a previous article, I shared some tips for my peers about how to establish a strong attorney-client relationship. I believe that this relationship begins as soon as a client contacts me to discuss a potential case.

Injured people deserve justice. Litigation can be a scary process for clients. Making the decision to hire a lawyer is obvious when serious injury is involved. What might not be so obvious is how to hire a good lawyer who can best represent you and your case. Here are some tips for you to consider when choosing legal representation.

1. Choose an attorney with trial experience. You may think that all personal injury attorneys have trial experience, but this is not always the case. Some attorneys work to obtain settlements, which can close your case faster, but don't always get you the compensation that you deserve. You should make sure that your attorney has the skill to take your matter to court and argue for you. Don't be afraid to ask how many cases like yours they have tried in court. But, be careful not to focus on asking the dollar amounts of previous settlements. Each case is unique and just because a similar case won a large verdict does not mean that yours will. Or in lawyer-speak "past performance is not an indicator of future success."

2. Choose an attorney who communicates well with you. Do you understand what the attorney is saying when they explain to you whether or not you have a case? It's important to find someone who can break down the legal jargon of the litigation process and explain to you exactly what is going on and what the next steps are. The frequency of communication is also important. Be sure to ask your attorney in what format and how often they will provide you with updates. The litigation process can sometimes feel like it is dragging on, but regular updates from your attorney can keep you informed of the status of your case.

3. Read recommendations and also trust your gut. In today's 24/7 information society, you can find a recommendation about anything from restaurants and vacation destinations to electronics and professional services. Law is no exception. Websites like AVVO offer client recommendations and reviews of lawyers and doctors. Another website, Super Lawyers, offers peer recommendations and reviews of lawyers. These websites can serve as a guide to provide some general information about an attorney that you might consider hiring. Don't just go by the recommendation. Take some time to talk to the attorney and develop your own thoughts about their ability to handle your case. Ask them about any negative information you may have read in a review and consider their response.

by: Jeff S. Gibson, Attorney

Don't you hate that feeling of total helplessness when you know there is something wrong with your car but aren't sure what? You get that knot in your stomach because you know you are at the mercy of the mechanic to tell you what the problem is. What's worse is when the mechanic delivers the news because you know two things 1.) it will most likely be expensive and 2.) you will have no idea what he is talking about when he explains to you what is wrong with the vehicle.

I have practiced law for over ten years and think most clients who are starting litigation go through the same feeling of trepidation as people who are waiting for a mechanic to deliver the news about car repairs.

Things that seem basic to lawyers such as discovery, depositions, and hearings are completely new and foreign concepts for a first time client. Litigation can be an intimidating process. It's important for a lawyer to provide guidance to their client every step of the way. Here are three key steps to follow that will create a strong attorney-client relationship:

1. Keep the Client Informed.

I sometimes take over cases because a client was unsatisfied with their previous lawyer. When I ask the client why they were unsatisfied, the answer is almost universally "My lawyer didn't tell me what was happening with my case." As lawyers, we know the process of litigation can take months or years. Most clients don't realize that a case can take that long. While the length of the case is sometimes out of the lawyer's control, the lawyer can certainly keep the client updated. Sending correspondence about the case, motions or briefs, and Orders from the Court to the client will allow the client to feel more involved in the process. It's a simple thing to do, and it goes a long way to building a strong relationship.

2. Set Expectations

At the very first meeting, a lawyer should set expectations with the client. A client needs to understand that the process can be long and grueling and therefore patience is a must. A client also needs to have a reasonable expectation as to any possible recovery. It serves no purpose for a lawyer to set unrealistic expectations in an effort to get the case. Be honest and forthright with the client about the challenges their particular case faces, and be careful not to suggest an amount the case is worth. The moment you suggest a number, the client will have that number burned into their head. We all know a case is never as good as the first time the client tells you their story. There will come a time later in the litigation when settlement amounts are an appropriate topic. Remember to set the proper expectation at the beginning by sharing the message that litigation is fraught with uncertainty and there are no guarantees.

3. Be Patient

We have all taken that phone call at 6 pm that turns into a two hour discussion. During the course of that call, we end up discussing the case at length and repeatedly explain the process of litigation. While it can sometimes be frustrating for the lawyer, it's important to remember the case could one of the most important events in our client's lives. A divorce, a lost job, or severe injury are life changing events. If lawyers would take a minute and put themselves in their clients' shoes, that two hour call wouldn't seem so frustrating. So next time you get that end of the day call from the client that calls every week, take the time to talk to them. Your patience and understanding will help build a stronger attorney-client relationship and may lead to future business.

Communication is key. Remember these tips the next time you are signing up a new client and I'm sure you will not only build a stronger attorney-client relationship but you will also help make their experience less stressful.

by: David J. Cutshaw, Attorney

Is a doctor responsible for a motorist's injuries when he or she fails to warn his patient that the medications he is giving the patient may cause the patient to black out while driving an automobile? The answer to that question was discussed by the Indiana Court of Appeals in the case of Manley v. Sherer, 960 N.E. 2d 815 (Ind. Ct. App. 2011).

In the Manley case, a doctor gave his patient certain medications and treatment which caused the patient to black out while driving, severely injuring an unsuspecting motorist. The injured motorist claimed that the doctor was negligent for failing to warn the patient that she should not drive while taking these medicines because she could lose consciousness. The doctor's lawyers tried to get the case dismissed because the injured motorist was not a patient of the doctor's and thus the doctor owed no duty to the injured motorist. The Court of Appeals found that it was foreseeable that a patient of the doctor could injure others if adequate warnings as to the use of certain medicines were not given to the patient and allowed the case to proceed to trial against the doctor.

The case may be appealed to the Indiana Supreme Court, but the Supreme Court said in 1997 that an injured motorist can sue a doctor who failed to warn a patient not to drive after the doctor saw the patient lose consciousness in his office after giving the patient a certain medicine--and let the patient leave his office; and the patient then blacked out and killed another person in a car accident. That Supreme Court case is Cram v. Howell, 680 N.E. 2d 1096 (Ind. 1997)

by: Kelley J. Johnson, Attorney

Ouch! Yeah, that title hurts. But, we have all been there. As we all know, jury trials just are not as common as they used to be, and it is not unusual for an experienced litigation associate to not have a jury trial under his or her belt.

My colleague, Jeff Gibson, recently wrote a story about how a young attorney can better understand the process of a trial as a way to get his or her foot into jury trial work. What happens when that day has finally arrived? A partner or senior associate needs your help for an upcoming trial, and approaches you to help. What now? Your first jury trial is staring you in the face? What can you do to help make the trial less nerve wracking?

I want to offer some last minute practical tips that will help any jury trial virgin - whether you are 2nd chair, 3rd chair, or just brought along for extra help.

1. Know that file like the back of your hand. The first chair is going to rely on you to help make the trial run as smoothly as possible. One great way to accomplish this is to assemble the trial book and organize the file yourself. This is hardly the time to be above grunt work. At a minimum, take the time to carefully review the contents in every red well. Nothing is more flustering than trying to find a document while the first chair and the judge is waiting on you.

2. Attend the final pre-trial conference. Hopefully, you are brought into help before this final conference because attending is invaluable. This is your chance to preview the courtroom and get to know the judge's rules and style. Take a quick sketch of the courtroom. Talk to the bailiff and court reporter. If the judge does not give you the ground rules for how he likes his courtroom run, don't be afraid to ask the bailiff. It may sound crazy, but you do not want to be called out on the first day of trial for your bottle of water when the judge's courtroom rule is no outside food or drinks allowed. At the last final pretrial conference I attended, the judge asked us to use surnames only - even for our clients. To have this information before trial was priceless so that we could practice using surnames before the first day of trial. Along these same lines (and I really should not have to say this) but please read the court's local rules - especially if your trial is in another county. If the judge is local, ask your peers for the judge's dos and don'ts.

3. Know you audio/visual needs and know the court's audio/visual capabilities. Laptops, iPads, DVD players, projectors, power cords, extension cords, adapters - even easels. Know what you have and what you need before the first day of trial. Don't be afraid to call the bailiff or to even take the time to see the court's equipment in person. If possible, do this before the final pretrial conference so that you can test everything after the final conference and before the first day of trial. And most importantly, know how to work everything.

4. Know your best case law. The briefing may be over, but you would be surprised how many times legal arguments are made either quietly up at the Bench or out of the presence of the jury. Have clean, extra copies of your most important cases for the judge. How helpful after the fine points of a case is argued to be able to give the judge a clean copy of your case to review in chambers.

5. Finally, if you are lucky to be able to call a witness, know the hearsay rule and the hearsay exceptions. Then, practice! Be prepared to explain why your question is not hearsay or be ready to cite hearsay exception to each question for your witness that you have that may be objected to because its hearsay.

Although you may feel you are in unchartered territory, your litigation experience will still kick in to help you. Follow these tips and your first jury trial will be a rewarding experience. Don't forget to enjoy the moment - you deserve it!

by: David J. Cutshaw, Attorney

In an interesting case, the Indiana Court of Appeals recently ruled that adoptive parents could proceed with a medical malpractice case against a hospital for misrepresenting the health of a child the couple sought to adopt. In Jeffrey v. Methodist Hospital, adoptive parents asked the hospital for the health records of an infant to see if the infant had any major medical problems before they decided to adopt the infant. The hospital "neglected" to provide the adoptive parents and their attorneys with a sonogram report that showed the infant had a hole in his brain which was indicative of severe developmental issues. The adoptive parents later learned of the child's severe deficiencies and were allowed to proceed with their claim against the hospital.

What makes this case particularly interesting is the fact that the Jeffreys had rejected three previous prospective adoptions based on information that the adoptee might be a special needs baby. Because of their desire to not raise a special needs child, the Jeffreys had made multiple inquiries regarding the medical records of the mother and child in this particular matter.

While the Court of Appeals did rule that the adoptive parents could proceed with a medical malpractice case against the hospital, the medical malpractice case against the doctor was dismissed because the claim against the doctor was not filed within the two year statute of limitations.

by: Jeff S. Gibson, Attorney

I recently had a conversation with a lawyer for a large pharmaceutical manufacturer. We were discussing the merits of a particular mass tort case. Near the end of our talk, he asked me whether I believed the pharmaceutical industry had any good intentions or purpose. I was a little shocked by his question and believe he asked me because of the heated debate that we had. I obviously gave him the impression that I was for the immediate destruction of the pharmaceutical industry, but this is not the case.

I am a trial lawyer. I make my living representing injured plaintiffs. I chose my profession because I believe in helping people. Many of the clients that I represent have had their lives permanently changed because of a defective medical device or drug. I feel a great sense of duty to help these people seek justice and receive compensation for their injuries so they can put their lives back together.

I do not believe that the pharmaceutical industry is evil. I do believe that the pharmaceutical industry, like any other industry, can sometimes allow the desire for profitability to negatively influence decision-making. When greed factors into the decision-making process, the results can be devastating as individuals or corporations may do things that they otherwise would not normally do. As a perfect example, the name "Enron" comes to mind.

The pharmaceutical industry has seen an explosion of growth in the last thirty years. You cannot turn on the television without seeing an advertisement for the latest "blockbuster" drug. I don't think that there is anything wrong with innovation and making money on what you create. I also understand the enormous investment of time, research, and money that it takes for a drug to go to market, and know that for every successful drug there are many failures. The problem arises when a drug manufacturer allows profitability to impact its decision on how far it will go to get a drug on the market. Off-label promotion, ghostwriting of medical articles, monetary influence over academic institutions; all of these marketing strategies lose sight that the original goal of the drug-- to help people.

This brings me back to the question posed by my colleague. My answer is that I don't believe the pharmaceutical industry is evil. I do think that when a pharmaceutical company is blinded by greed, the results can be catastrophic for the people I represent, and that's why I do what I do.

by: Julie Andrews, Attorney

Imagine holding the winning Hoosier Lotto ticket worth a cool $34.5 Million dollars! Then imagine having to give half of it away to a soon-to-be ex spouse! Not too enticing, is it?

For those of you who have not followed the drama behind the recent Hoosier Lotto winning ticket, the story goes like this: A winning ticket was sold in Shelby County worth $34.5. A few days later, a woman received a call from her estranged husband, who coincidentally lives in Shelby County. The husband requested finalization of their divorce. The wife thought her husband sounded suspicious and questioned why he suddenly wanted to finalize the divorce. She asked if the reason was because he had won the lottery. In what now appears to be a sarcastic response, the husband admitted that he was the winner. After his affirmative admission, the game was on! The wife hired a lawyer to secure her share of the winnings through the divorce process. In fact, the court quickly issued a temporary restraining order which prevented the husband from dispersing any of the money until the divorce was settled in Court. It was never confirmed that the husband was the winner. In fact, it has recently been revealed that the winner of the Hoosier Lotto is a 70 year old woman.

During a divorce and dividing up property, most people won't be as lucky as the couple that George Strait sings about:

When that front door swung wide open, She flung her diamond ring and Said: "Give it away." "Just give it away." An' I said: "Now, honey, don't you even want, Your half of everything." She said: "Give it away." Just give it away. "There ain't nothin' in this house worth fightin' over. "Oh, an' we're both tired of fightin' anyway, "So just give it away."

Realistically, most people have situations such as the Lottery story above and not the George Strait couple. Soon-to-be ex spouses want to make sure they get their share of the wealth. Some litigants even get down to dividing the food and condiments, similar to a famous scene from The Jerk with Steve Martin. The estate or "marital pot" includes all things, assets and debts whether they were acquired by the parties prior to the marriage, during the marriage by the efforts of one or both spouses or by gift or inheritance.

Once the value of the estate is determined, it has to be divvied up between husband and wife. The beginning presumption is that an equal division of the estate is just and reasonable. However, this presumption is rebuttable and is based on the unique facts of the case, this gives the judge a wide range of discretion. Discretion can be translated to mean uncertainty as to how the Judge will resolve the disputed property division issues and higher attorney fees.

This uncertainty, or "divorce purgatory", can cause difficulty for parties to live day-to-day during a divorce and to plan for their post-divorce life. One way to avoid this issue is to enter into a premarital agreement. Premarital, or prenuptial agreements, have gained popularity as more people are waiting until they are established in their careers before they get married. Having a well established career means that a person is likely to have a greater asset base than people who get married fresh out of college or high school.

Likewise, people who remarry are more likely to have a larger asset base they wish to protect. These same people may desire not to be saddled with the risk of assuming half of their prospective spouse's debts. A premarital agreement gives prospective spouses peace of mind as well as autonomy and control over how their property will be divided in the event of a divorce or death. Although it can be an uncomfortable conversation to discuss how to divorce when the parties are preparing to walk down the aisle, it is a wise financial, drama-reducing plan.

When preparing for a premarital agreement, the following are a few (of many) helpful points:

1. Don't present a premarital agreement to your prospective spouse the night before the wedding. Creating a premarital agreement takes time. An agreement entered into without adequate notice or representation can be set aside as being signed under duress;

2. Hire an attorney. If you are emotional during the process (not to mention being preoccupied by details of the upcoming nuptials), your attorney can keep you focused on the end result and pay attention to the detail. An attorney can help keep the bargaining power equal to avoid the agreement being set aside for being unconscionable;

3. Prepare a complete list of all of your assets and all of your debts;

4. Issues of spousal maintenance and divorce attorney fees should be considered;

5. Child support cannot be bargained away between the parties

While premarital agreements are subject to being set aside under certain conditions, some of which are set out above it is more likely that the end result will be more predictable and less expensive. If the husband and wife in the Lotto story had a premarital agreement in place (and if the husband really been the winner!), they may have avoided the drama of dividing their presumed assets and probably saved money in legal fees and expenses.

by: Jeffrey A. Hammond, Attorney

This afternoon Apple unveiled the new iPad. Lawyers who have already embraced the iPad already know the transformative effect it can have on your practice. The new iPad features and upgrades announced today make the new iPad an even more valuable tool for today's mobile lawyer. While there are many impressive upgrades in the new iPad, the following are a few that will make the new iPad an even more useful tool for your practice.

FINALLY, A RETINA DISPLAY FOR THE IPAD

Graphics, text and icons are going to be sharper and easier to read than ever before. Anyone who has gone from an iPhone 3G to an iPhone 4 (or 4S) knows the difference a Retina display makes. Amplify that difference to a much larger screen and the readability increase on the new iPad will be impressive. Transcripts and documents will be easier to read and easier on your eyes. And yes, your movies and photos will be in HD quality too (actually a higher resolution than your 1080p flat panel TV at home).

VOICE DICTATION COMES TO THE IPAD

Although Apple did not add its Siri personal assistant to the new iPad, it did add all of the functionality of the Siri software when it comes to speech recognition and text input. The ability to speak text into my iPhone 4S has been my favorite feature. Responding to texts and emails using voice dictation is much faster and safer than typing while driving (or walking). Now that same voice dictation functionality has been added to the new iPad.

Anyone who is used to old school dictation will be amazed at how well this works. You can speak in the same types of commands that you are used to with traditional dictation (punctuation, new paragraph, open/close parenthetical, open/close quotes, etc.). Unless I am in a crowd, this is how I write emails now. The accuracy is amazing and it's much faster than typing. For those of you still hanging on to your Android phones for various reasons, you will now be able to enjoy the same Voice Dictation capabilities on the new iPad (and keep your Android phone).

4G DATA SPEEDS

The new iPad is also compatible with AT&T and Verizon's 4G data networks in the United States and over other carriers abroad. Data download speeds with 4G will greatly improve the ability for busy lawyers to download that last file before the airline attendant forces you to shut down your device on the plane. This will also make storage and retrieval of your case files and documents in the Cloud a far more useful tool. Downloading that large PDF document production will now be much faster. The demo during the Apple press conference today showed that the 4G data network could download an image file faster than the iPad could process the file and display it on the screen.

YOUR IPAD AS A PERSONAL HOTSPOT

If you have ever been stranded in an airport with sketchy Wi-Fi service or pay-per-use Wi-Fi, you will love the ability to use your new iPad as a Personal Hotspot. With a 4G enabled iPad and data plan, users will be able to share their 4G data over Wi-Fi to their laptops and other mobile devices using the new iPad's Personal Hotspot feature. I love this feature on my iPhone 4S and will likely now drop to a much lower data plan on my iPhone and use the iPad's 4G data for my Personal Hotspot. This will be an amazing addition to lawyers who are often out of the office or traveling for business (or pleasure).

REAR iSIGHT CAMERA UPGRADE

The rear camera on the iPad 2 was entry level and the picture quality was poor - certainly compared to any current smart phone camera. Those limitations made the iPad 2 rear camera really only useful for Facetime and some video recording. The new iPad rear camera improves to a 5 megapixel sensor, with backside illumination and a greatly improved optics system. This will improve your ability to use the new iPad to scan documents (using one of the many available apps that turn the camera into a scanner), take full 1080p video, and take greatly improved pictures. The technical side of the camera software is also upgraded and now offers auto-exposure, auto-focus, auto-face detection, AF-lock and greater edge-to-edge detail. A much needed improvement from the limitations of the iPad 2's rear camera. Bring the new iPad with you on your next site inspection and leave your old point and shoot camera at home.

FULL 1080P HD VIDEO RECORDING

The rear camera is now capable of full 1080p video recording with built in image stabilization. Wherever you go, you've got a great camera built-in to record full 1080p video.

In addition to these features, the new iPad has a much faster processor, updated Apple software and applications and retains the same price point as the current iPad 2 line.

Still not ready to get an iPad? Consider buying an iPad 2 for a new and reduced price. The 16GB Wi-Fi only iPad 2 has dropped in price by $100 to $399 (from $499). The full iPad 2 line isn't going away, they are just dropping the prices on the iPad 2 by $100. Another reason to buy iPads for all of the lawyers in your law firm, even if they already own one. (Hint Hint Cohen & Malad...)

The new iPad will be available on March 16th and Apple will begin taking pre-orders for the device today.

by: Brian K. Zoeller, Attorney

Custody disputes often play a part in divorce proceedings. Even though the marriage is ending, a couple may have children to raise and want to remain active parents and do what is in the best interest of the child. Joint custody is a popular choice for many parents and allows them equal opportunity to spend time with their children. The alternative is an arrangement where one parent has primary custody while the other retains rights of parenting time and is able to maintain a presence in the child's life.

Custody can be a heated issue for many couples. In addition to child custody, pet custody has been gaining attention. Many couples who do not have children may view the family dog as their "furry child". Even for couples who do have children a pet is often viewed as a member of the family as well.

The question of 'who gets the family dog or cat' has come up in divorce proceedings and has been met with debate. It is common for families with children that often the pet will go to the spouse who holds primary custody of the children or, in the event of joint custody, the one who lives in a house with a yard. For spouses who are divorcing and did not have children the situation can be quite different. The question remains-- How can pet custody best be decided?

According to a recent survey by the American Pet Products Association, 62% of U.S. households own a pet. Over 78 million dogs and 86 million cats have earned a place in our hearts and in our families. Additionally, 83% of dog owners refer to themselves as "mommy" or "daddy".

In a court of law, pets are considered personal property, and therefore are not subject to custody agreements. If no agreement is made ahead of time, it is up to the judge to determine who will be granted ownership of the pet. Typically a court has the following options:

1. Ownership is granted to one party or the other

2. The judge can determine that the pet be sold and the proceeds split evenly between the two parties.

For this reason, it is strongly encouraged that a divorcing couple work together to create an agreement that they both feel is fair for ownership, visitation, and even sharing expenses for the care of the pet. Typically the Court will approve any agreement reached by the divorcing couple on how to handle these issues. Just as with children, divorcing couples are often able to craft agreements that are far more beneficial for all involved than having a Judge decide those matters.

While it may sound trivial initially, the American Academy of Matrimonial Lawyers reports an increase in pet custody disputes within divorce proceedings over the past several years. Because there is no current statutory provision for pet custody this issue is sometimes difficult for the courts to navigate. Even though the divorcing couples' dog, cat or other animal is very much considered a member of the family the law simply does not afford them that same status. For this reason it is often advised that a couple work out the pet ownership issue prior to appearing in court.