Defense Digest 12/08: Message From The Executive Committee

By Thomas A. Brophy, Esq., President & CEO

Too often I hear the term "litigator" and the term "trial attorney" used interchangeably. There are many, many litigators who have never tried a case to verdict. Even the term "trial" is subject to a variety of interpretations. Does a bench trial count as a "trial"? Does a binding mediation count as a "trial"? Does an arbitration count as a "trial"?

Marshall, Dennehey, Warner, Coleman & Goggin has trial attorneys. Of course, many of our lawyers have tried cases in bench trial settings, or in binding mediations, or in compulsory or elective arbitrations. However, each year lawyers at this firm try over 150 cases to jury verdict. Lawyers at this firm take verdicts in medical malpractice cases, product liability cases, long-term care cases, legal malpractice cases, civil right cases, employment cases, liquor liability cases, premises liability cases, bad faith cases, and a host of other cases predicated on different theories of liability.

Most important to our clients is that Marshall, Dennehey has identified a group of senior trial lawyers who are willing to assume responsibility to try cases on short notice and are willing to travel to foreign jurisdictions at the request of Marshall, Dennehey's clients. As a general proposition, these attorneys are able and willing to work with local counsel or with counsel whom have already been retained by a client. However, if necessary, lawyers at Marshall, Dennehey are also willing to assume complete responsibility for trying a case to conclusion on short notice.

By way of example, Marshall, Dennehey serves as regional monitoring counsel in birth trauma cases for a large healthcare liability insurance carrier. In that capacity, lawyers at Marshall, Dennehey are asked to monitor cases alleging birth injuries in a three-state area. They work with local counsel where necessary and are particularly involved in the identification, retention, and preparation of expert witnesses. On some occasions, lawyers from Marshall, Dennehey will enter and co-try a birth trauma case with the attorney who had originally been retained to defend the case. On other occasions as part of this program, lawyers from Marshall, Dennehey are asked to assume complete responsibility for trying a birth trauma case, and this request may be made on the eve of trial.

Recently, Mike Obringer and Steve Ryan were asked to defend a manufacturer of dietary supplements involving Ephedra. In that case it was alleged that a 30-year-old male had suffered a stroke, leaving him wheelchair bound and speechless, allegedly as a result of utilizing dietary supplements containing Ephedra. The insurance carrier involved in that case agreed to provide coverage for the manufacturer only 45 days prior to trial. Discovery was essentially completed and closed at the time that Mike and Steve were asked to defend the manufacturer. They accepted the assignment, although trial was delayed for an additional 15 days. In that case, the plaintiffs rejected a seven-figure settlement offer. At trial, the jury returned a defense verdict following several hours of deliberations.

In another case, Bruce McKissock had been working as local counsel in a commercial litigation case involving a franchise dispute. Initially, Bruce's role was limited to that of local counsel. The case was bifurcated with liability being tried first and damages scheduled to be tried several months later. At the trial of the liability phase of the case, the client asked Bruce to assume greater responsibility for trying the case. Following the jury's verdict on liability, Bruce was asked to assume responsibility himself for trying the damage portion of the case.

George Helfrich from the firm's Roseland, New Jersey, office, was asked by one of the firm's clients to assume responsibility for a matter that was due to be tried in 45 days. The case was being defended by another law firm. The case went to mediation 30 days prior to a scheduled trial. At that time, the carrier learned for the first time that the plaintiff's demand was $2.5 million and that the plaintiff was claiming to be totally disabled. Since the claim of total disability and the demand of $2.5 million were completely unexpected, the carrier looked to move the case to someone they felt was capable of handling a case of that magnitude. The carrier asked George Helfrich to assume responsibility for trying the case if it could not be settled. The case could not settle and was tried to verdict. The jury concluded that while George's client was negligent, there was no proximate cause between the injuries sustained by the plaintiff and the negligence of George's client, rendering a defense verdict.

Scott Gemberling of the firm's Philadelphia office serves as National Monitoring Counsel for an insurance carrier who writes a significant amount of business insuring bars and restaurants. Scott is frequently asked to assist local counsel in establishing a settlement or trial strategy in significant cases. Frequently, if the case involves catastrophic injuries, Scott is asked to serve as trial counsel. Scott is often asked to get involved after a mediation has failed to achieve a settlement.

Over the last four years, we have been asked in one survey after another by various clients to identify the number of cases tried by lawyers at this firm to jury verdict. As a result, we now track disposition information so we can respond to these inquiries from clients.

We find clients calling us with greater frequency to assume responsibility for a case after it has been pending for one or two or even three years. As this article reflects, we are with a fair degree of frequency asked to assume responsibility to try a case within a few weeks of trial. Lawyers at Marshall, Dennehey, Warner, Coleman & Goggin are able to do that because they are "trial lawyers" as well as litigators. As we have grown in size over the last ten years, we have added a significant number of lawyers with a great amount of trial experience.

If you have a case and you think you could be better served by adding an experienced trial lawyer to the case or by changing counsel or by conferencing the case with a more experienced lawyer or perhaps in mock trying the case, please feel free to contact me. Within a few hours, I will be able to identify a lawyer with very significant trial experience and expertise in the subject matter that is the basis for the case that is scheduled to go to trial. If I can't, I will let you know within 48 hours. I can be reached at (215) 575-2748.

If you think the trial lawyers at Marshall, Dennehey can be of help to you, please give me a call at (215) 575-2748. You will know very quickly if we can help, and most often, we can.