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2008
ABA Annual Meeting
August 7-12, 2008
Waldorf~Astoria Hotel
New York, NY

TIPS CLE Programs

 

Dear Colleagues:

New York, New York: The Statue of Liberty, Ellis Island - and the grand skyline of Manhattan, what an incredible backdrop for the most timely and thought provoking CLE programs offered by TIPS during the Annual Meeting. What you see in the news is what you’ll get in the TIPS CLE programs. Just some of the highlights include an analysis of the Terrorism Risk Insurance Act; an international panel of Justices and experts discussing how to protect international electronic communications and intellectual property rights; workers’ compensation in the Post 9-11 and Natural Disaster Era; liability insurance issues associated with the U.S.’s aging infrastructure (bridge collapse); and claim trends after the subprime meltdown.

Grab some “deli” and be sure to seek out the most informative and relevant TIPS CLE programs during your visit to NY. I can assure you that this will be time well spent.

Ron Richman
2008 Annual Meeting Program Chair
Bullivant Houser Bailey PC
San Francisco, CA

Friday Programs | Saturday Programs | Sunday Programs| Co-Sponsored Programs

 

Friday, August 8, 2008

 

*Click on the title of each program for a complete overview, including program chairs and speakers.

8:30 am – 10:00 am
CLE Program, Waldorf~Astoria
The Terrorism Risk Insurance Act—TRIA’s Nuts and Bolts and Lessons
The program will include an overview of the Terrorism Risk Insurance Act and the Act’s impact on insurance and reinsurance, including the impact of the Act on first-party property and business interruption, and workers’ compensation coverage. The speakers will discuss the Act’s implications for cedents and reinsurers. In addition, they will discuss the economic consequences of the Act on the insurance, reinsurance and real estate markets; as well as lessons that can be discerned from the Act concerning federal regulation of insurance in general. The program will provide an overview of the Terrorism Risk Insurance Act, including an update on recent changes in light of the anticipated extension of the Act and how TRIA impacts a broad range of insurance lines.

8:30 am – 10:00 am
CLE Program, New York Hilton
Mind Control: The Psychology of Settlement, How to Get What You Want
The program will look at the psychology of settlement from a variety of viewpoints, using a multidisciplinary approach. Specifically, the program will introduce attendees to principles of game theory, psychological aspects of settlement decision making, and practical application of these principles in mediation, negotiation and other settlement contexts. This program will seek to understand how to improve your settlement negotiations with outside-the-box thinking. This is not your usual win-win settlement program. This is a program that will provide unorthodox tools to give you the edge in your negotiations. The program will also contain an ethics component, including where to draw the line between puffing and misrepresentation.

12:00 pm - 1:00 pm
CLE Program, Marriott Hotel
Top Practice Tips Program
Top Practice Tips from TIPS program will consist of sixty second tips on a variety of practice management topics especially management, marketing and financial issues, including practitioners presenting from plaintiff, defense and insurance company perspectives, in addition to including tips from a diverse panel as per ABA’s Goal IX with a focus on essential and practical advice to young lawyers to assist in becoming more effective in their practices.

2:00 pm – 3:30 pm
CLE Program, New York Hilton
Workers’ Compensation in the Post 9/11 and Natural Disaster Era
An expert panel will be assembled to discuss realities in workers’ compensation in the age of terrorism and natural disasters. This program will be presented in two parts. In part one, Dr. David Prezant, Chief Medical Officer at the Office of Medical Affairs, for the Fire Department of the City of New York (FDNY) and the Senior Pulmonary Consultant for FDNY will discuss pulmonary disorders affecting firefighters, police, volunteers, and other workers involved in post 9/11 cleanup and the rapid emergence of other exotic diseases caused and precipitated by exposure to sand, dust, & other silicates. Dr. Prezant responded on 9/11/01 to the World Trade Center and was present during its collapse and aftermath. Since that day, he has initiated a multimillion dollar medical monitoring and treatment program for FDNY. Dr. Prezant has written extensively on pulmonary physiology, firefighter health and safety and since 9/11 on the health impact of World Trade Center collapse on NYC firefighters and EMS rescue workers.

In part two, Robert Briscoe, of Millman Inc., will lead a discussion from the actuarial cost perspective, of the effects 9/11 had on New York and national workers’ compensation costs, range of cost impacts that could emerge from such incidents in the future, and the implications of the federal terrorism reinsurance law on the costs of possible future terrorism incidents.

2:00 pm – 5:00 pm
CLE Program, New York Hilton
Ordering Liberty in an International Economy
Where once international commerce could only move as fast as a ship could cross the oceans, now commerce moves at the speed of light and with the ease of the push of a button. However, the laws have not always kept up with the speed in which business is transacted, leaving companies at risk when communications are blocked by foreign policies and when attempts to enforce intellectual property rights are frustrated by the inaction of foreign governments.

This ever-expanding world economy allows not only the exchange of money, but also the exchange of ideas - ideas which go beyond pure commerce and which include those regarding human rights and individual freedoms. Commerce cannot truly flow freely between nations when nations censor and oppress their citizens. As nations become more prosperous, their citizens’ demands for individual liberties increase.

Hear an international panel of Justices and experts in the field discuss how to protect international electronic communications, the means available for enforcement of intellectual property rights in foreign nations and the developing world, and how the international economy affects transnational liberties. In addition, they will discuss how the insurance market has evolved to provide protection to companies in this increasingly dynamic global market.

2:00 pm – 5:00 pm
CLE Program, New York Hilton
e-Discovery from the War Room!
No more theoretical discussions of the so-called New Rules - We promise! This is Reality. This is War. We need to know how to fight in the trenches. We will teach you exactly what to do when faced with a new case, investigation, or subpoena, taking you through a step-by-step process to identify, collect, process, sort, review, and produce relevant electronic data.

We will focus on how to do it “the right way,” at each and every stage, so that you and your client can avoid sanctions, jail time (yes, jail time), or other unpleasant ramifications. We will expound on a field-tested battle plan for dealing with the onslaught of e-discovery requests that are now common in virtually every litigation, arbitration, or governmental inquiry. From preservation and collection, to review and production, this program explains from a practical perspective what every attorney must know to meet their discovery obligations, prevent spoliation of evidence, and avoid the risk of sanctions. Subtopics will include such mysteries as forensic imaging of hard drives, the electronic chain of custody, software review tools, data filtering, and the dangerous path of de-duplication.

We will also address the understandable difficulties this process places on all who are subject to it and the strain it puts on client-attorney relationships. Materials will include checklists and templates for preserving and collecting relevant electronic information from your own client, and getting the electronic information you need from opposing parties. Panelists will include: a magistrate judge experienced in resolving e-discovery disputes; in-house counsel, counsel representing plaintiff and defense perspectives; and a forensic expert.

2:00 pm – 3:30 pm
CLE Program, New York Hilton
Annuity Suitability Under the Microscope
Insurers and plaintiffs’ lawyers have been doing battle all across the country over whether variable annuities have been sold to persons, primarily elderly, for whom the annuity is not a prudent investment. Insurance regulators and attorneys general have also joined the fray bringing actions against annuity issuers for unsuitable sales practices. This program brings together representatives of annuity issuers, plaintiffs counsel, insurance regulators, and insurance agent counsel to discuss their perspectives on this timely and complex topic.

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Saturday, August 9, 2008

8:30 am – 10:00 am
CLE Program, New York Hilton
Billing Guidelines and Auditors - Are They Ethical? Are They Legal?
Most insurance companies seek to control the amount of defense costs incurred by counsel in defending lawsuits against their insureds. Some insurers impose limitations on defense costs directly in their insurance policies; others impose limitations through the application of billing guidelines or ad hoc bill reviews, which may or may not have been agreed to by defense counsel at the time she or he was retained. Some insurers regularly employ outside auditors to review bills, and many insurers require outside defense counsel to agree to audits of their bills as a condition of their being retained.

On the one hand, there is no question that insurers have legitimate interests in controlling costs and in responding to well-documented instances of abuse by lawyers or policyholders who believe they are entitled to undertake any defense effort no matter how expensive, even if a dispassionate, economic or businesslike calculus would mandate or strongly suggest taking a more modest course. On the other hand, there is a growing concern that cost control measures, including billing guidelines and legal audits, may unreasonably limit the claims expense benefits payable under insurance policies, may interfere with the attorney-client relationship with the insured by reducing the quality of representation defense counsel is willing to provide for the reimbursement offered (possibly to the point of professional malpractice), and may run the risk of waiving attorney-client and work product privileges as a consequence of outside legal audits.

Most bar associations have issued ethics opinions which prohibit insurers from interfering with the independent professional judgment of defense counsel, and there is little or no disagreement by insurers that they do not want to assume resondeat superior liability for the conduct of appointed defense counsel. Nevertheless, the conduct by some claims handlers of refusing to authorize payment for certain tasks, arbitrarily paying for only a portion of the work performed, or requiring retained counsel to engage in time-consuming review and appeal processes either before or after performing necessary work, as a practical matter substitutes the insurer’s judgment for that of the insured’s attorney as to how best to defend the case.

This program and panel discussion is intended to explore the legal and ethical ramifications of billing guidelines and other cost control devices and will seek to offer recommendations on how insurers can best manage and reduce the cost of litigation while at the same time preserving the ability of counsel to provide a complete and effective defense for their insureds. The questions and issues that will be debated surrounding this controversial topic, of interest to insurers, policyholders, defense lawyers, and coverage counsel, include the following:

• Do insureds have the right to know about the restrictions placed on their defense?
• Is there an obligation by insurers to reveal these restrictions during the policy sale process?
• Do insureds have the right to know about the use of outside auditors and the implications associated with their use?
• Do outside counsel have the right to be free of any cost restrictions on how they defend a case? Numbers of depositions? Witness interviews? Legal research memoranda? Experts? Internal office “strategy” conferences?
• Do current “billing guidelines” strike the right balance between reasonable cost management and independent professional judgment on how best to defend a case?
• Do current billing guidelines violate state insurance regulations? State statutes governing the practice of law and attorney conduct? Criminal statutes such as RICO?
• Is there a risk that the tension between “Sky’s the limit defense costs,” and “Insurers’ placing their own interests over their insureds” may result in “Spitzer” type investigations, regulatory reform, or class action lawsuits?

8:30 am – 10:00 am
CLE Program, New York Hilton
Mourning the Death of the Billable Hour: Successfully Transitioning to Alternative Billing Methods
A panel discussion regarding how law firms have successfully transitioned to billing methods other than hourly, and a general overview of these alternative methods. The panel will include five diverse speakers, including those with plaintiff, defense and insurance perspectives, along with diversity as per ABA Goal IX. The program will emphasize two law firms and a corporation that are successfully utilizing billing methods other than the “traditional” hourly method to both increase revenue and quality of life for the lawyers at these firms. The program will focus not just on the theoretical debate surrounding the topic, including the law student perspective, but more specifically on how the transition to other billing models has been successful.

2:00 pm – 3:30 pm
CLE Program, New York Hilton
The Wage-Hour Litigation Wars: Successful Strategies for Plaintiff and Defense Counsel in Litigating Wage-Hour Claims and Class Actions
The floodgates of wage-hour claims and class actions continue to overflow with multi-million dollar lawsuits. In 2007 Wal-Mart agreed to pay $33,000,000 to settle an overtime case with 87,000 Wal-Mart employees. Wal-Mart and other large and small employers have been sued for unpaid overtime claims in numerous states actions, as well as under the Fair Labor Standards Act. The FLSA requires that non-exempt employees be paid overtime for hours after 40, be paid for all time worked and imposes not only back pay but penalties for a willful violation. Many of the cases involve alleged misclassification of employees as exempt managers, thus denying them overtime pay.

Class actions claiming that the Plaintiff represents a “class” of employees substantially increase the employer liability. Employees who are misclassified or wrongfully denied overtime pay are loosing significant amounts of money on an ongoing basis.

These class and representation action cases are not limited to large employers or managers claiming misclassification. Many medium and small firms and employees earning little more than minimum wage are parties in this wage-hour litigation. Meal and rest period claims and other benefit issues further complicate these claims in many cases. In today’s competitive business employers are seeking to minimize costs, with labor costs being a major factor. Plaintiff and defense counsel who once handled only the occasional wage-hour claim are now faced with a growing number of these claims and class actions as part of their practice.

The plaintiff and defense counsel in this workshop will discuss strategies to successfully litigate and resolve both individual claims and class actions.

2:00 pm – 5:00 pm
CLE Program, New York Hilton
The Bridge Fell in 13 Seconds: Liability and Insurance Issues Associated with our Aging Infrastructure and Government Responses
What do you do when the unthinkable happens in your town: a bridge falls, sewers collapse, the levees break, a building falls down? The statistics about our aging infrastructure which needs repair are staggering! This program will explore liability issues, insurance coverage, and government responses. Hear from two panels of experts with first-hand experience. The liability and insurance panel includes an engineer graphically portraying the state of our infrastructure, inspections, and what can cause structures to fail; an attorney discussing who might be liable for such failures; a forensic accountant cataloging the types of losses which may occur and various theories for calculating losses; and concluded by an attorney discussing what insurance coverages may be available. The government response panel includes a former FEMA executive explaining how FEMA gets involved and the hierarchy and role of agencies in governmental response to disasters; the Civil Chief from the U.S. Attorney’s Office in MN discussing securing, protecting, and granting access to disaster areas; counsel to Port Authorities advising ways to keep politics from preventing infrastructure repair and crisis management when there is a disaster (including his experience with the World Trade Center terrorism); and a U.S. Senator describing infrastructure activity in Congress. Please join us for a reception afterwards to continue the discussion.

2:00 pm – 5:00 pm
New York Hilton
Building a Better ADR Clause: An Inter-Disciplinary Approach
By taking a holistic approach to arbitration and ADR, consumers and practitioners of arbitration and ADR services will learn from each other’s experiences across industry and dispute resolution boundaries that often stifle arbitration and ADR innovation. The program consists of three panels that take us from the anatomy of an arbitration clause in insurance and reinsurance contracts, to innovations in ADR developed by other industries like financial services and the maritime industries, and finally to a discussion of ethical issues surrounding arbitration.

Anatomy of an Arbitration Clause
This panel addresses the basic elements of an ADR clause, and identifies the various traps and soft spots that exist in the boilerplate language developed decades ago and still in use today. Potential traps to be discussed include: (1) unintended outcomes from the application of state, federal, and international laws and conventions governing arbitration; (2) the influence of choice-of-law provisions and arbitration rules, on the arbitration proceeding; (3) consolidation of disputes; (4) the use of generic rules and procedures not tailored to the business or dispute;(5) vague criteria and time frames in arbitration clauses for arbitrator and umpire selection; (6) the potential for confidentiality and access to record issues may hasten resort to arbitration; (7) the purpose of the “honorable engagement” clause; and (8) the ability of parties to modify the standard for reviewing arbitration awards.

ADR Innovations that Work: Lessons Learned from Other Industries
The second panel is composed of practitioners from different disciplines within the financial services, insurance, reinsurance and maritime industries that will offer and discuss their thoughts regarding recent ADR clause innovations that they have used or observed in their respective industries. The Panel will focus on a variety of topics, including escalating ADR provisions, methods for avoiding arbitration inertia and stalemate and preserving the efficiencies of arbitration, and building and strengthening neutrality into the ADR process.

Ensuring and Enforcing Ethics in Arbitration
This panel will focus on arbitrator ethics and will qualify for MCLE ethics credit. Topics for discussion include standards and expectations for arbitrator disclosures, the implications of multiple appointments and ex parte communications on impartiality, and the effect of arbitrator advocacy on panel neutrality.

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Sunday, August 10, 2008

8:30 am – 10:00 am
New York Hilton
Claim Trends After the Subprime Meltdown
As foreclosure activity increases, so do title policy claims. This program will examine the type of claims that are occurring now and compare them with experiences during the economic downturn of the 1980s. Claim trends on a region by region basis will also be reviewed. The speakers represent the perspective of the underwriter counsel (Mr. Killea of New York, NY), litigation counsel (Mr. Cohen of Miami, FL), and a well-known regulatory consultant (Dr. Lipshutz of Waban, MA). Dr. Lipshutz will also discuss the likely short term effect of the trends on title insurers’ solvency and future premium rates.

Ms. Stephens will present the annual case review of all reported cases on title insurers and title and escrow agents. The outline is usually about thirty pages.

In sum, the program will present the latest statistical data and practical experience of the many facets of the mortgage meltdown and its impact on the title industry. It will be a unique opportunity to survey this vital data in a compact program.

8:30 am – 10:00 am
New York Hilton
Public Nuisance Litigation - The State’s New Regulator
From cigarettes, to lead paint, to handguns, to subprime mortgages, public nuisance is becoming a chief legal theory for municipalities and states to combat perceived societal ills. Over the past several decades, difficulties in proving product liability claims against individual manufacturers caused a turn to alternative theories of liability. One of those alternative theories, the tort of public nuisance, has become the foundation for many lawsuits by state and local governments against entire industries for the harms their products allegedly caused. The governmental entities in these suits seek reimbursement of the costs they claim were or will be incurred as a result of both legal and illegal uses of a product, such as the costs of police, medical and emergency services associated with the criminal use of handguns and costs of smoking cessation programs and anti-smoking media campaigns associated with cigarettes. Product manufacturers have faced these types of suits for years; now the mortgage and investment banking industry is being taken to task by cities, such as Cleveland, OH, for enabling the subprime lending and foreclosure crisis.

The implications of public nuisance litigation could be profound and far ranging. If successful, the application of public nuisance theory could make all entities absolute insurers of their products, be they physical products or “paper” products. Only time will tell if this centuries old legal theory will become the newest tool used to hold companies responsible for their actions. An eminent panel will discuss the history and current state of public nuisance litigation as it affects many industries.

8:30 am – 10:00 am
New York Hilton
The Art of Impeachment from a Trial Master
Terence F. MacCarthy is known for effective and innovative witness impeachment. He has been the Executive Director of the Federal Defender’s Office in Chicago for 40 years and has lectured across the country teaching attorneys how to impeach witnesses in a civil or criminal case. He has been described as “the first and best federal public defender in the nation” by Judge William J. Bauer of the U.S. Court of Appeals. This is an opportunity to learn tips, secrets, and helpful hints from a trial master on how to quickly, simply and effectively impeach the toughest of witnesses-even those who believe they cannot be impeached.

 

Co-Sponsored Programs

Friday, August 8, 2008
8:30 am - 10:00 am
Sheraton Hotel
How Judges Think
Capitalizing on Jerome Groopman’s best-seller, “How Doctors Think” (which analyzes rational – and irrational – factors influencing physicians’ diagnoses), this inter-disciplinary panel will explore the impact on judicial decision making of a wide range of cognitive phenomena, which may taint even the (seemingly) most rigorous legal analysis. The “take-away”? Although judges may aspire to “the rule of law,” logical fallacies and biases may result, in effect, in “the rule of man.”

*Sponsored by the National Conference of Federal Trial Judges (NCFTJ) and co-sponsored by the Section of Litigation and Tort Trial & Insurance Practice.

Thursday, August 7, 2008
Part I: 8:30—11:45 AM
Lunch : 12:00—1:00 PM
Part II: 1: 15—4:30 PM
New York Marriott Marquis
The 21st Century Judge: Challenges for the Future
Part I, Technology: Changing What Happens Inside and Outside the Courtroom (CLE)– This exciting four session program will discuss technology and its fifty-year impact upon judges and courts: (1) Present day use of technology in the courtroom and during discovery, including ethical issues; (2) Online Dispute Resolution, the next frontier of alternative dispute resolution; (3) Technology that is changing the way the court system and judges operate, including case management, e-filing, and legal research; and (4) Current trends and the future of legal technology over the next decade.

Lunch and Learn, Contempt of Court (non-CLE) – Please join us for a ticketed lunch during which Mark Curriden will discuss a century-old landmark case that forever changed American Jurisprudence. This will showcase the first and only criminal trial ever conducted by the Supreme Court of the United States.

Part II, Successful Collaborative Courts and How to Develop Them & Collaborative Courts: A Skills Workshop (CLE) – This program will begin with a candid discussion with judges who have developed collaborative courts around the country. A “how to” approach will be presented to assist others interested in pursuing the development of collaborative courts in their jurisdictions. The program will conclude with a presentation of the common skills and techniques required to successfully handle and maintain a collaborative court. This Skills Workshop will focus on communicating with collaborating agencies and the parties involved.

*Presented By: The American Bar Association Judicial Division National Conference of State Trial Judges

Friday, August 8, 2008
3:00 pm - 4:30 pm
Marriott Hotel
What the Presidential Candidates Should be Saying about Judicial Selection
This program will feature New York Times Senior Correspondent Linda Greenhouse as moderator for a panel discussion about the criteria that Presidents should use to select federal judges. Confirmed panelists include Professor Christopher L. Eisgruber, Professor Sherrilyn Ifill, and Dean Kenneth Starr. The program is designed to appeal to a wide audience of lawyers and judges, and is certain to raise thought-provoking issues close in time to the 2008 Presidential election.

*Sponsored by the Judicial Division and co-sponsored by the Tort Trial & Insurance Practice Section.

Saturday, August 9, 2008
2:00 pm - 3:30 pm
Hilton Hotel
When In Rome. . .?”: Cross-Cultural Issues In The Courts
What does “the rule of law” mean in today’s multi-cultural society? In a growing number of cases in state and federal courts all across the country, immigrants are pleading “the cultural defense,” invoking the customs and traditions of their homelands to explain their actions. Even when it is not raised per se, culture plays a role in many cases, both civil and criminal.

In this engaging and highly-interactive presentation, audience members will use hand-held technology to “vote” on the outcome of vignettes drawn from fascinating and controversial real life cases “ripped from the headlines” and presented by an inter-disciplinary panel of some of the nation’s leading cross-cultural experts.

Does the adage that “all men are presumed to know the law” apply to recent immigrants? Should immigrants be held to the same standards as everyone else, on the theory of “When in Rome . . .?” You be the judge!

*Sponsored by the Section of International Law and co-sponsored by the Section of Litigation, National Conference of Federal Trial Judges, and Tort Trial & Insurance Practice Section.