American Association for Justice www.justice.

org

NLD DIVISION
THE SIDEBAR | SPRING 2014
The Wake of the 2010 Cruise Vessel Security and Safety Act page 4 Beyond Torts 101: Rare and Unique Causes of Action page 6

NEW LAWYERS

IN THIS ISSUE:
Little Pink Houses for You and Me page 3 Book Review: Rick Friedmans Becoming a Trial Lawyer page 9

I have no wisdom, other than to tell you about my truth and hope that you can relate to what I am feeling.

Message from the Chair

Its 1 a.m. and I am having the worst case of writers block that is going on day five. Its like the movie Groundhog Day. Every night I sit at my computer, stare at the blinking line and I tell myself that I cannot get up till the Message from the Chair is complete. However, each night I find myself unable to think of something brilliant to write about each day I spend avoiding calls and emails from our editor requesting that I send in my article. Tonight, I decide to read all of the insightful Message from the Chair articles dating back to 2001 written by past chairs, most of which are now stalwarts in our organization no pressure. I toy with the idea of posting some of their old head shots and allowing the readership to guess who is who like one of my favorite issues of US Weekly where they show celebrities old high school photos. I decide that it is probably not the best way to keep friends or to get past Chairs to keep answering my calls. I hit delete, cleanse the white page and stare at the blinking line till the screen goes blurry. Its 2:05 a.m. now and I am hallucinating from sleep deprivation and my waking nightmare is being narrated by Morgan Freeman. Morgan Freeman begins the narration about the end of Jessicas Chair of the NLD and then the movie pans to a clip of Gerry Spence saying, just be real.

Message from the Chair, Jessica Pride:

Just be real. I cant write this article because I am nervous about what you will think about me. I am nervous that in light of the wonderful articles written by all of the past Chairs that came before me that I will fall short and the membership will regret ever electing me into office. My mind flashes to a scene of an angry mob with pitch forks running me out of the upcoming NLD meeting in Dallas ok I am being a bit melodramatic but the fear is true. Does anyone else ever feel self-conscious in this line of work? A couple of years ago I went to Trial Lawyers College. Before I could begin working on trial skills, they stripped me. They peeled back the layers of my psyche and tore down the emotional walls I
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JESSICA PRIDE The Pride Law Firm San Diego, CA jpride@pridelawrm.com www.pridelawrm.com

JUSTICE.ORG/NLDNEWSLETTERS

cont. Message from the Chair, Jessica Pride:

had put up to protect myself so that I could discover who I was. It wasnt till I knew who Jessica was that I could stand in front of a jury and be me. You hear that so much in law school, or as a rookie attorney after you watch a master trial lawyer kill a cross or closing argumentYou cant do it like him/ her. You need to find a way to do it like you. Make it your own. So who am I? I am just a normal woman who is a mother of two trying to juggle work and being a mom. I get fired up about injustice and I go charging off head first without sometimes knowing the extent of what I am getting into. Its that spirit that got me into sexual assault litigation. I got pissed off about a woman who was raped and now have a caseload made up of mainly sexual assault cases and I love it. Its that same spirit that brought me to this moment in which I sit here talking to you. Dont get me wrong, I am so honored to be Chair and to serve this membership. But truthfully, writing these

columns was not on my radar when I signed up. What wisdom do I have? What wonderfully insightful thing can I say to brilliant lawyers that hasnt been said ten times over with much more grace in the last twenty years? It dawns on me that I am missing the point. Being honest and vulnerable in front of a jury transcends into all aspects of my professional career. I have no wisdom, other than to tell you about my truth and hope that you can relate to what I am feeling. Be yourself. I just finished trying a case last week. For the first time in my career I was in the pocket in the well. Voir dire felt comfortable and in closing I felt like I was talking to my friends over lunch. I was actually told by the judge later off the record and out of the presence of the jury that I got a bit informal. Interesting because I was just being me and didnt even notice that I stopped being lawyer Jessica and became just Jess, having a conversation with the jury about how my friend was hurt and how they could help her. We won.

I made a rookie mistake in trying to write this article and forgot the simple lesson I learned back at TLC. I tried to be someone I am not. I tried to be the commanding voice of past Chair Chris Gilreath. As much as I would like to speak as beautifully as he does in front of our membership or sound like Morgan Freeman, I am Jess and I have to use my own voice whether I am I am talking to 12 jurors or 3,000 new lawyers. Getting comfortable in your own skin is hard and it takes continual practice. However, after you have put yourself out there, you may be surprised that you are pretty awesome and people like you just the way you are. To quote one of my favorite characters, Stuart Smalley, I am good enough, Im smart enough, and doggone it, people like me. Sincerely,

Jessica Pride Chair, New Lawyers Division

American Association for Justice | Education Endowed by Power Rogers & Smith
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ers New lawy 5% Save 2d ees only).

Trial Advocacy College: Depositions

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JUNE 68, 2014 BUFFALO, NY, Hyatt Regency Buffalo Hotel & Convention Center
For more information and to register, visit www.justice.org/Depositions

THE SIDEBAR SPRING 2014

LITTLE PINK HOUSES FOR YOU AND ME

By Suzanne Nelson-Pittle Attorney at Law, Seattle, WA
Suzanne.Hyphen@gmail.com

The themes of the day were team work and divide and conquer. I showed up at the build site around 9 a.m. and a dozen or so volunteers were already working in full swing. The project was a small, single-story, pink shotgun house resting atop ve-foot high pillars, to ensure that the house would survive Mississippi River oodwaters. I was immediately handed a paintbrush and gloves and put to work. It was a cold New Orleans morning with temperatures in the high 30s. I started off the morning assigned to a small team who were priming and painting wood that was to be used as crown molding. The last 10 percent of the project takes 85 percent of the time, the Habitat for Humanity project manager commented. Lucky for New Orleans homeowner Miss Julie, a 64 year-old local resident, the American Association for Justices New Lawyers Division was there to help with those all-consuming details. Throughout the day, our projects included building the front stairs, priming and painting trim and doors, caulking drywall seams, blowing in insulation, and removing root clumps from the soon-to-be driveway. We tackled these projects in small groups with a division of labor and under the supervision of experienced Habitat for Humanity homebuilders. The NLD, hailing from all corners of the country; kept warm by staying in huddles, bouncing in place, and warming frozen ngers by ood lamps. We sang and bobbed our heads along to an eclectic iPod mix with tunes ranging from Paul Simon to Kanye West. Volunteers ranged from AAJ leadership to rsttime conference attendees. While practicing our Karate Kid technique, wax-on, wax-off, NLD members chatted about practice areas and law school experiences. The New Lawyers Division has a tradition of scheduling a service project for the day before the start of each conference. There is no better way to get to know other new members than to swing a hammer or wield a paintbrush side by side, and no worthier cause than Habitat for Humanity. At the annual summer convention in Baltimore, there will be another NLD service project partnership with Habitat for Humanity. I would strongly encourage new members to plan coming in a day early. Roll up your sleeves and get to know other new lawyers from across the country while helping to build a home for a family in need.

THE SIDEBAR SPRING 2014

The Wake of the 2010 Cruise Vessel Security and Safety Act
By Jarrett DeLuca

safety laws to protect passengers. And like all cities, cruise ships have proven susceptible to sexual assaults, criminal attacks, and other acts of violence. The International Cruise Victims Assoc. (ICV) was a driving force behind the legislation. The President of the ICV, Kendall Carver, founded the organization after his 40-year-old daughter went missing on a 2004 Alaskan cruise. He shared his daughters story before the U.S. Senate in 2008, describing what he called a cover-up by a major cruise line of the facts surrounding his daughters disappearance. The tragic account of his daughter was alarming. Mr. Carver testified that it took multiple days for the cruise line to confirm that his daughter was previously on their ship and that the cruise line reported her missing only after Mr. Carvers inquiry. This was weeks after her disappearance and well after the cruise line had given away much of her personal property. After hiring a law firm and spending over $75,000.00 in legal fees, the Carver family later learned that a cabin steward reported her missing during the cruise and was simply told by a supervisor to forget it and just do your job. In passing the new legislation, Congress found that approximately 12,000,000 people take cruises each year, that cruise ship passengers have an inadequate appreciation of their potential vulnerability to crime while on ocean voyages, and there were no federal laws explicitly requiring cruise ships to report crimes occurring on their vessels. Id. Congress also found that it is not known precisely how often crimes occur on cruise vessels or exactly how many people have disappeared during ocean voyages because cruise line companies do not make comprehensive, crime-related data readily available to the public. Id. The inadequacy of safety rules to protect those aboard cruise ships is what spurred the passage of the CVSSA. The CVSSA was enacted to combat the proliferation of sexual assaults and other crimes that occur on cruises and enhance the safety of cruise ship passengers by requiring cruise lines to upgrade, modernize, and retrofit the safety and security infrastructure on their vessels. Id. So what does the CVSSA require? It is comprised of basic safety requirements intended to both prevent injuries and criminal acts from ever occurring, as well as ensure necessary support and medical care when they do. For example, the CVSSA requires crew and passenger rooms to be equipped with peep holes (or other means of visual identification), security latches, and time-sensitive key technology. Additionally, cruise lines are now required to have railings which extend at least 42 inches above cabin decks and to supply passengers with a security guide identifying onboard
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people take cruises each year

Jarrett DeLuca
The DeLuca Law Firm Palm Beach County, FL
JDeLuca@DeLuca-Legal.com thedelucalawrm.com

ver the past few decades, the rights of injured cruise ship passengers have eroded under increasingly restrictive ticket contract provisions. These carefully drafted provisions, sometimes shared only after a customer purchases a ticket, are designed to limit access to courts and compensation for injuries sustained at sea. They typically shorten the statute of limitations to one year, attempt to exclude liability for independent contractors, and contain onerous forum selection clauses. As many cruise lines are headquartered in South Florida, for example, oftentimes cruise tickets will include forum selection clauses obligating injured passengers to file claims in the U.S. District Court for the Southern District of Florida. Where there is a lack of diversity, these clauses can strip injured passengers of the right to trial by jury by forcing them to file suit under federal admiralty law. See e.g. Leslie v. Carnival Corp., 22 So. 3d 561 (Fla. 3d DCA 2008). Although these and other legal obstacles continue to frustrate efforts to obtain redress for shipboard injuries, the federal Cruise Vessel Security and Safety Act, 46 U.S.C. 3507 (CVSSA) may have slightly turned the tide in favor of cruise ship safety. Congress passed the CVSSA in 2010 in order to establish requirements to ensure the security and safety of passengers and crew on cruise vessels. H.R. 3360, 111th Cong. (2010). The need for this legislation is no surprise. After all, the cruise line industry has for years touted its vessels as floating cities. Over the past few years, disappearing passengers, catastrophes like the grounding of the Costa Concordia, and widespread shipborne illness have brought sharp focus to the need for definite and explicit

Jarrett DeLuca practices with The DeLuca Law Firm in Palm Beach County, Florida and represents victims of cruise ship injuries, medical malpractice, defective products, and other negligence.

THE SIDEBAR SPRING 2014

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12,000,000

When cruise passengers are victimized or injured, provisions of the CVSSA may also aid in piecing together crimes and arming those injured with some of the tools needed to effectively seek redress for their losses.
medical and security personnel. The security guide must also appear on a vessel owners website, include crime reporting information, and identify the locations of the United States embassy and each consulate of the United States for each country the vessel will visit during the course of the voyage. Under the CVSSA, cruise lines must integrate technology that can be used for capturing images of passengers or detecting passengers who have fallen overboard, to the extent that such technology is available. Given that this technology (often referred to as man over board or MOB systems) is available and that numerous cruise ship passengers have mysteriously gone missing without a trace, one may think cruise lines would be eager to fully equip their ships with this life-saving technology. Seemingly they are not. Despite the fact that the CVSSAs requirements took full effect in 2012, today there are still many cruise lines that have brushed off these safety requirements as unfeasible or impractical. When cruise passengers are victimized or injured, provisions of the CVSSA may also aid in piecing together crimes and arming those injured with some of the tools needed to effectively seek redress for their losses. Along with new crime reporting and record keeping rules, the CVSSA requires cruise lines to maintain a video surveillance system to assist in documenting crimes on the vessel and in providing evidence for the prosecution of such crimes. Unfortunately, the law does not require the surveillance videos to be monitored which, of course, would help prevent crimes and injuries from occurring. Instead, these provisions are intended to strengthen investigative efforts and preserve evidence. With respect to sexual assaults, the CVSSA requires cruise lines to keep adequate, in-date supplies of antiretroviral medications and other medications designed to prevent sexually transmitted diseases after a sexual assault, maintain rape kits, and have available medical staff trained to care and treat sexual assault victims. However, the Act does not on its face require cruise lines to provide U.S. licensed medical staff on all cruises. Rinker v. Carnival Corp., 753 F.Supp.2d 1237, 1241 (S.D. Fla. 2010). There are also provisions that require cruise lines to establish and implement procedures limiting which crewmembers can access guestrooms and when they can access guestrooms. Though these requirements were drafted in order to reduce sexual assaults and other crimes, the new mandates offer little guidance on what exactly the policies and procedures should entail. Hopefully, cruise lines will draft policies which meaningfully improve security rather than simply pay lip service to the new law. The provisions of the CVSSA, coupled with those found at 46 U.S.C. 3508 (Crime Scene Preservation Training for Passenger Vessel Crewmembers), certainly mark progress in cruise ship safety. At a minimum, it should encourage cruise lines to tighten onboard security and take additional safety measures to protect their passengers. Whether the Act will truly translate into improved safety, however, may depend largely on questions of law which have yet to be addressed. For example, does the law expand the duty of care owed by cruise lines or create certain non-delegable duties? And, what is the legal effect of a violation of the CVSSA? Resolution of such issues will ultimately determine whether those victimized and injured aboard cruise ships can use the CVSSA as an anchor for liability.

LGBT CAUCUS
AAJs lesbian, gay, bisexual, and transgender (LGBT) members are organizing to form their own caucus! AAJs newest-proposed caucus, the LGBT Caucus, is seeking members interested in forming and leading the caucus. Please contact Zachary Wool at zwool@bkc-law.com for more information.

UPCOMING EVENTS
APRIL 2425, 2014 Jazz Fest Seminar*
Presented with AAJs Trucking Litigation Group New Orleans, LA

MAY 2930, 2014 Membership Drive

Philadelphia, PA

JUNE 68, 2014 Trial Advocacy College: Depositions

Buffalo, NY

JUNE 2627, 2014 Total Electronic Fetal Strip Monitoring Immersion Seminar*
Washington, DC

JULY 26-29, 2014 2014 Annual Convention

Baltimore Convention Center Baltimore, MD

SEPTEMBER 2728, 2014 AAJs Seminar on Winning Medical Malpractice Cases with Rules of the Road Featuring Patrick Malone*
Santa Fe, NM
*Open only to AAJ plaintiff lawyers (Regular, Life, Sustaining, Presidents Club, and Leaders Forum) and AAJ Paralegal Afliates.

THE SIDEBAR SPRING 2014

Beyond Torts 101: Rare and Unique Causes of Action

By John Sauter

Wrongful birth, sometimes referred to as wrongful pregnancy, is a similar claim, but one that belongs to the parents of a child, for the loss of the opportunity to make a fully informed choice as to whether to abort the fetus or continue to term.
Damages in a wrongful birth claim are generally limited by courts to emotional distress damages and to the increased cost of caring for a disabled child versus the typical cost of raising a healthy child. However, if the child is born healthy, damages are generally limited to the economic costs of the pregnancy itself and do not include child-rearing expenses. At least thirty states recognize a medical negligence action for wrongful birth.

he law of torts has evolved greatly since the turn of the prior century, at which time legal texts gave as much or more attention to injuries to persons or property caused by animals and ultra-hazardous activities than they did to injuries caused by a persons negligence. What follows is a number of rare causes of action that are either infrequently litigated or not recognized in all jurisdictions.

Wrongful Birth and Wrongful Life

As science and technology continue to develop at a rapid pace, so too has a body of law that has attempted to define the rights of individuals to make their own informed choices about conceiving and bearing children. Wrongful birth and wrongful life have their earliest origins in the District of Columbia Circuit Court medical negligence decision Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946), which held for the first time that a physician could be held liable for negligence based upon injuries to an infant born alive.

Terrorism
The Alien Tort Statute (ATS), Antiterrorism Act (ATA) and Foreign Sovereign Immunity Act (FSIA) are federal statutes that allow US citizens as well as their estates, survivors, and heirs to sue individuals, states and state agents implicated in acts of terrorism.
While federal courts have yet to conclusively recognize a stand-alone cause of action for terrorism in a strict sense, continued developments in law at the international level have gradually revealed a set of elements that provide the plaintiffs lawyer with a definitive prohibition against terrorism. The tort has evolved since Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), in which the court ultimately dismissed the case, reasoning that the plaintiffs had not identified a cause of action under US or international law enabling them to have their day in court. While Tel-Oren did not provide a redress for its plaintiffs, it did spur the U.S. Congress to act, which passed the Antiterrorism Act, which specifically created a civil cause of action for terrorism victims, their families and survivors. Under the ATA, individuals may claim damages for economic and non-economic harm, even absent physical injury. The reasoning behind Congress passage of the ATA was to punish sponsors of terrorism those individuals and entities who provide financial support to terrorist actors without directly engaging in acts of violence. Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir. 2002) provides a good example. David Boim was a 17-year old student and American citizen studying in the disputed West Bank territory. He was murdered by two gunmen who were known members of Hamas, an organization that advocates for the
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The term wrongful life denotes a claim by or on behalf of a child that a defendants medical negligence led to the childs impaired existence.
The crux of the typical wrongful life claim is that but for a failure to provide accurate information about a childs health during the pregnancy, the parents of the child would have made the decision to terminate the pregnancy prior to birth, thus preventing the fetus from being born with a disability or deformity. Recovery for damages in a wrongful life cause of action was first recognized by the California Supreme Court in Turpin v. Sortini, 31 Cal.3d 220 (1982). Problematic in wrongful life cases is the calculation of damages is dependent upon a comparison between the Hobsons choice of life in an impaired state and no life at all. See Becker v. Swartz, 386 N.E.2d 807 (N.Y. 1978). After all, the wrong claimed by the plaintiff is the plaintiffs own impaired existence. Courts in most jurisdictions have been reluctant to recognize a cause of action for wrongful life because of the discomfort with the judgment that an individual life could be so impaired that it would be preferable to have no life at all. The problem with refusing to recognize a wrongful life claim is that it leaves a severely injured individual with no way to recover for their injuries.

John Sauter
Cloppert, Latanick, Sauter & Washburn Columbus, OH
jsauter@cloppertlaw.com www.cloppertlaw.com

John Sauter practices injury and employment litigation at the Columbus, Ohio law firm of Cloppert, Latanick, Sauter & Washburn. He is a 2011 graduate of Capital University Law School. While in law school, John received the 2009 American Association for Justice Alia Herrera Memorial Scholarship.

THE SIDEBAR SPRING 2014

creation of a Palestinian state. Davids parents, who filed suit on his behalf, alleged that Quranic Literacy Institute (QLI) and co-defendant Holy Land Foundation (HLF) were fronts for Hamas in the United States. The Boims alleged that the defendants laundered money through a series of complicated transactions and that the money eventually wound up in the hands of Hamas, who were capable of using the money to fund terrorist activities. The case went to trial, where QLI and HLF declined to participate. A jury awarded $52 million in damages, which were trebled to $156 million. More importantly, however, the Boim litigation answered the question, does providing financial support to a terrorist network result in primary liability for terrorist acts in the affirmative.

The availability of the tort of wrongful discharge in violation of public policy has the potential to expand even further as a number of cities pass legislation that offers protections based upon an employees sexual orientation or gender identity. These additional protections, particularly in progressive cities in red states whereby the same protections are not afforded via statue or state constitution, could allow a court to find an employee who is discharged by an employer is afforded the protections offered by a city anti-discrimination ordinance, despite these protections not appearing in a state statute, constitution, or administrative rule. Wrongful termination in violation of public policy also protects individuals who have filed workers compensation claims. Most states, either through statute or common law, do not allow an employer to retaliate against an employee through termination for filing a workers compensation claim. Further, as recently as 2011, in the Ohio Supreme Court decision of Sutton v. Tomco Machine, Inc., 2011-Ohio-2723, the court held that an employee has a valid cause of action for wrongful discharge in violation of public policy when the employee is terminated by an employer as the result of an on-the-job injury, but before the employee is able to file for workers compensation benefits. Sutton thus protects an employee from wrongful termination as the result of merely suffering an on-the-job injury.

are commonly actions.

referred

to

as

1983

Wrongful Termination in Violation of Public Policy

The vast majority of employees in the United States are considered at-will employees, meaning an employer may terminate the employee at any time, including for a bad reason or no reason at all.

In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995) provides an example of a particularly egregious 1983 action against, among others, a group of physicians. In a highly publicized case, the plaintiffs alleged that physicians employed by the University of Cincinnati College of Medicine and supported by the U.S. Department Defenses Nuclear Agency knowingly injected up to 85 poor, cancer patients with high doses of radiation, including an overwhelming number of African-Americans. The alleged purpose of the experiments was to examine the effects of radiation on battlefield personnel. It was claimed that the patients were never told, and they were unwitting participants in a secret military experiment. Many of the patients died within weeks or months of the injections. The plaintiffs sued, alleging violations of their Fourth, Fifth and Fourteenth Amendment rights. Speaking to the plaintiffs Fourteenth Amendment Due Process rights, the court stated that the patients had a right under the Fourteenth Amendment to be free from a state-sponsored invasion of their bodily integrity. The fact that the patients were not informed and thus did not consent to participating in a secret military experiment that had the capability to severely injure or kill them was the basis for the court to find favor in the plaintiffs claims that the patients were denied their constitutional exercise of free will.

Over time, many exceptions to the employment at-will doctrine have developed, including the tort of wrongful termination in violation of public policy.
The overwhelming majority of states recognize the tort of wrongful termination in violation of public policy. For example, the California Supreme Court in Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980) stated that an employers limits on terminating an employee may be limited by statute or by considerations of public policy. Over time, courts in both California and other states have expanded the limits of what constitutes a policy when determining the scope of public policy. The California Supreme Court held in Stevenson v. Superior Court, 16 Cal.4d 880 (1997) that at minimum, the policy must be a constitutional or statutory provision, it must benefit the public at large, (as opposed to private individuals), it must be well-established at the time of discharge, and must be substantial and fundamental. As time has progressed, other courts in a majority of states expanded recovery under this tort theory for violations of administrative rules or common law, in addition to statute and state constitution provisions.

Constitutional Torts
Constitutional torts are legal actions to pursue the violation of ones constitutional rights by a government employee.
In its landmark decision Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 338 (1971), the United States Supreme Court created a private right of action for plaintiffs, holding that federal officials can be personally sued for money damages for the violation of an individuals constitutional rights stemming from official acts. Common examples of constitutional torts include filing a lawsuit against a police officer for use of excessive force, suing a school administrator for wrongfully expelling a student, or suing a prison warden for unconstitutional conditions of confinement. Constitutional torts are brought under 42 U.S.C. 1983 and

Headquarters Tort
A headquarters tort is a unique negligence cause of action against the United States government, led pursuant to the Federal Tort Claims Act, in which the negligence of a government employee taking place in the United States causes harm to occur in a foreign country.
Couzado v. US, 105 F.3d 1389 (11th Cir. 1997) provides a good example of this rare negligence act. In 1991, U.S. Customs agents began investigating a drug trafficking scheme involving individuals in several Latin American countries and the United States. A
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THE SIDEBAR SPRING 2014

meeting was held with members of the US State Department in which individuals from the Belize Embassy expressed a desire to participate in a drug sting. The Belize Embassy contacted the Belize National Police, who agreed to load 45 kilograms of cocaine on a Belize Air flight bound for Miami, Florida that originated in Belize. The plan was for the U.S. Customs agents to then apprehend the recipients of the drugs when the plane arrived in Miami. Two problems quickly developed. First, no one told Belize Air that cocaine was to be loaded onto one of their planes, leaving the planes pilots clueless as to their illicit cargo. Second, no one at Customs or the State Department realized that the flight to Miami was scheduled to first make a short stop in Honduras after departing Belize. Predictably, when the flight arrived in Honduras, the plane was searched by Honduran authorities with drug-sniffing dogs. The pilot and his crew were arrested by the Honduran authorities and taken to an open-air rooftop prison where they spent five days being beaten with sticks and rubber hoses while being threatened with a cattle prod and otherwise tortured. Since the Federal Tort Claims Act applies the law of the state in which the negligence was alleged to have occurred, the Court applied Florida law, stating, a defendant owes a duty of care to persons who are foreseeably endangered by the defendants conduct and fall into the zone of risk which makes the conduct unreasonably dangerous. Id. at 1395. A decision in favor of the plaintiffs was upheld on appeal.

False Light Invasion of Privacy

False Light Invasion of Privacy is one of four different causes of action for invasion of privacy recognized by the Second Restatement of Torts.

Generally, one who gives publicity to a matter concerning an individual places the individual in a false light subject to liability if the false light in which the individual is placed would be highly offensive to a reasonable person and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter.
While recognized by a majority of jurisdictions, False Light Invasion of Privacy is the least-widely adopted privacy tort. For example, the Ohio Supreme Court, which finally adopted the false light privacy tort in 2007 in Welling v. Weinfeld, 113 Ohio St.3d 464 (2007), had previously declined to adopt the tort in decisions made in 1983 and 1994. The Court noted in its Welling decision that Colorado, in Denver Publg Co. v. Bueno, 54 P.3d 893, 904 (Colo. 2002) had recently declined to adopt the tort because it risked inflicting an unacceptable chill on those in the media seeking to avoid liability. North Carolina, Minnesota, Missouri, South Carolina and New York are states that have also declined to recognize False Light Invasion of Privacy. The tort of False Light Invasion of Privacy is illustrated by the amusing case of Braun

v. Flynt, 726 F.2d 245 (5th Cir. 1984). Jeannie Braun was a performer at a Texas theme park who performed an aquatic act with Ralph, the Diving Pig. In the act, Ms. Braun would tread water in a pool while feeding Ralph with a bottle of milk. Chic, a magazine published under the Hustler imprint by Larry Flynt, published a photo of Ms. Braun and the pig in its Chic Thrills section, which contained brief stories of current events which were typically overtly sexual in nature. Braun sued Flynt and Chic magazine under theories of defamation and false light invasion of privacy and the jury returned a verdict for both in Brauns favor. Flynt appealed, and the 5th Circuit Court of Appeals, applying Texas law, upheld the trial court, recognizing that the publication of a Brauns photo in Chic would imply either that she consented to the publication of her photo in a pornographic magazine or that she approved of the content and opinions expressed in Chic. Either of those findings, according to the Court, would place Ms. Braun in a false light highly offensive to a reasonable person. While it is doubtful that the typical litigator would see these types of cases on a routine basis, it is my hope that this article will alert and educate the reader as to the existence and viability of these rare torts. It should also serve as a reminder that the scope of the law is always subject to expansion, particularly when a plaintiff with a compelling story has suffered an injustice that demands an appropriate remedy.

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Quarterly Book Review:

By Abigail Larimer

Rick Friedmans Becoming a Trial Lawyer

n Becoming a Trial Lawyer, celebrated attorney and prolific writer Rick Friedman offers his advice to those contemplating a career as a trial lawyer. Written with civil plaintiffs attorneys and criminal defense attorneys in mind, Friedmans guidance is geared towards those who may have ended up in these particular fields due to a preference of fighting authority instead of falling in line. If this sounds familiar, you will enjoy this book. Despite $400 million in verdicts, and four individual verdicts ranked in the ten largest in the United States, Friedman does not consider himself to be a natural trial lawyer. For example, the book starts with a tale of Friedmans first attempt at voir dire that ended with the judge questioning the jury after Friedman found himself unable to form words and sentences. Friedman writes that he is not the most brilliant or charismatic trial attorney out there, but has found success through dedication and hard work. Friedman divides the book into three sections, and in a format that will appeal to most lawyers, provides a clear roadmap in his introduction. While Becoming a Trial Lawyer is useful for trial lawyers at all stages, the book is geared towards those considering a career as a trial lawyer or perhaps questioning this career choice. The book may also appeal to plaintiffs lawyers who have been in practice for a while but have put off trying cases due to inexperience and a fear of making mistakes. Friedman makes it clear he does not think this is a career for everyone due to the grueling workload and emotional toll. His message can be either inspiring or depressing, likely depending on ones contentment and aptitude for the profession. In Part I, Entering the Jungle, Friedman asks the reader to question why he or she wants to be a trial lawyer. Friedman here expounds upon the hard work it takes to become a successful trial lawyer. In Entering the Jungle, Friedman also discusses how new trial lawyers will have to take it upon themselves to learn how to win a trial, particularly in todays environment where most lawyers never see the inside of a courtroom. Friedmans advice

on how to prepare for trial or become a trial lawyer before trying casesis particularly useful for those looking to improve their skills before taking the plunge as first chair. For those who have already figured out that being a good civil plaintiffs attorney involves more than placing ads on TV, Part II, Traps in the Jungle, is where Friedman offers substantial practical advice on how to be successful in the courtroom. Traps in the Jungle is the longest section of the book and draws largely on Friedmans personal anecdotes. Friedman sticks to his theme of emphasizing the individual journey every trial lawyer must take. He notes that every trial lawyer must figure out what works for himself or herself, depending on ones personality type and particular skill set. Anyone who has struggled with various aspects of trial work can surely find encouragement in understanding these problems are universal. In At Home in the Jungle, the third section of the book, Friedman addresses the challenges trial lawyers face outside of the courtroom. Friedman devotes chapters to physical health and family and friends, reminding trial lawyers not to overlook these areas. As it can be all too easy to start neglecting these areas in the midst of preparing for trial or writing a motion for summary judgment, Friedmans suggestions in this section can be useful to attorneys of all experience levels. Throughout the book, Friedman turns the focus inward and prompts the reader to evaluate if he or she is in the right profession. Friedmans book is a great starting point, and the book is full of additional reading suggestions. The book is less than 200 pages, and in typical Friedman style, most chapters are only a few pages long. Friedman interposes humor with his practical advice, helping to make the book an enjoyable read. While some of Friedmans advice may be repetitive to more experienced trial lawyers, most will be able to benefit from Friedmans expertise. This book is an excellent companion or follow-up to Friedmans other popular trial books, Elements of Trial and Rules of the Road.

Abigail Larimer
Barrett & Farahany, LLP Atlanta, GA
abigal@bf-llp.com www.justiceatwork.com

Abigail Larimer is an associate in the Trial Practice Group and Wage & Hour Group at Barrett & Farahany, LLP, in Atlanta, Georgia. Abigail represents plaintiffs in all kinds of employment disputes and focuses on overtime litigation.

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The NLD Executive Committee would like to recognize those New Lawyers who have shown their commitment to the civil justice system.

NLD

NLD Star John Hadden

STARS

NLD Board of Governors member John Hadden has published, along with co-author Kenneth Shigley, Georgia Law of TortsTrial Preparation and Practice, published by Thomson/Reuters Westlaw. A widelyread treatise on Georgia trial practice, the volume provides comprehensive coverage of tort litigation, from case intake to trial and appeal, and discusses both procedural and substantive matters. Later this year, John will publish two additional treatises, both published by Westlaw: a new edition of Greens Georgia Law of Evidence, covering the newly-revised Georgia evidence code, and Georgia Magistrate Court Handbook (with Judge Wayne Purdom), relied upon statewide as the authoritative resource on Magistrate Court practice. John was also recently named a Super Lawyer in Georgia. John is a partner in the rm of Turkheimer & Hadden, LLC in Atlanta. His practice focuses on catastrophic personal injury claims as well as appellate matters involving tort litigation.

NLD Star Jesse Strauss

In late 2011, Jesse Strauss and co-counsel in ve states sued 14 law schools on behalf of seventy-ve recent law school graduates who claimed that misleading employment statistics caused them to attend law schooland incur signicant debtwithout the prospect for full time legal employment. These cases generated signicant media attention and focused all levels of the legal profession on the plight of new lawyers unable to secure employment to pay off their law school debts. The cases also paved the way for the American Bar Association to modify the employment reporting, thus ending some of the practices that contributed to the misleading employment statistics. During 2012 and 2013, several of the cases entered into the discovery phase. Class certication motions will be submitted in the coming months. Jesse and the team are very proud of their work on this important issue Jesse Strauss is the founder of Strauss Law PLLC, a full service law rm in New York City specializing in investor rights, consumer fraud, and wage and hours matters. Jesse is a 2012 and 2013 Super Lawyer Rising Star.

NLD Star Joel R. McClellan

Joel McClellan of Marks & Harrison in Richmond, Virginia obtained a $23,600 verdict in an auto collision case involving a rear end collision. The insurance company denied liability, and the highest offer before trial was only $6,000. The insurance company argued that the plaintiffs injuries were not related to the collision and the plaintiff was contributory negligent. More specically, the insurance company argued since the Plaintiff declined to take the ambulance to the emergency room, she was not injured. Joel received this favorable verdict in just his second trial. Joel joined Marks & Harrison in October of 2013 and focuses his practice on helping injured people. Daniel Wasserberg litigated a particularly difcult asbestos case which was led in Delaware and settled for a substantial amount on the eve of oral arguments for summary judgment. The settlement was reached after a series of tragic events. Wasserbergs client was in his early 50s when he was diagnosed with malignant mesothelioma. He had been exposed to asbestos from rip out, renovation and demolition work he performed at an industrial production facility in Iowa in the late 1980s and early 1990s. The Plaintiff had little time left to live when he sat for his deposition. He heroically testied until 8 pm on the second day of his deposition because he knew he was slipping away and that if he did not complete the deposition, his testimony would be inadmissible. The very next day he went into a coma and died the day after. The total settlements against all Defendants will eclipse over $2,000,000.00. While the money will not bring back this husband and father, the widow and young son feel vindicated by the hard work put in by Daniel and his rm. Daniel is an associate at Weitz Lux in New York, practicing primarily in their Asbestos Litigation group.

NLD Star Daniel Wasserberg

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NLD Star Nelson Boyle

NLD

STARS

Nelson Boyle won a landmarkappeal in Hansen v. American Family Mut. Ins. Co., 2013 COA 173, __ P.3d __ (Colo. App. 2013), (cert. petitionpending). Hansen ends a dispute over the statutory recovery against a rst-partyinsurer who unreasonably delays or denies payment of covered benets, making clear thatthe insured is entitled to recover twice the covered benet, plus the benet itself in a separate action, and the judge must award that amount even if the jury awarded no damages for the delay or denialat trial. The Court also rejected American Familys attempt to expand the words fairly debatable to create ablanket defense for all statutory bad faith actions.For several years, insurers and claimants have litigated over the size of that statutory penalty. Due to Nelsons appellate work, the Court afrmed the excellent trial work of attorneys John Trueax, Sam Livingston, and Andrew Newcomb. Nelson practices appellate and personal injury law at Burg Simpson in Colorado and can be reached at nboyle@burgsimpson.com.

NLD Star Brandon Smith

NLD Chair-Elect Brandon Smith was recently named a Georgia Super Lawyer by Atlanta Magazine. Brandon was also selected as a 2014 Top 100 Lawyer in Georgia and a Top 40 Under 40 Lawyer in Georgia by the National Trial Lawyers. Brandon also serves as Co-Chairman of this years Litigation Committee for the State Bar of Georgia Young Lawyer Division. The Litigation Committee is the largest and most active committee within the Young Lawyers Division, and hosts seminars, social events, and the highly-regarded War Stories in Litigation Program throughout the State of Georgia. Brandon is a partner in the rm of Childers, Schlueter & Smith, LLC in Atlanta practicing in the area of mass torts, including pharmaceutical litigation, as well as other serious personal injury claims.

NLD Star, Kevin Habbereld

Kevin Habbereld, of obtained a punitive damage verdict from a jury in a very conservative county in Pennsylvania in an automobile case involving a drunk driver. Robert Rittberg suffered a full thickness rotator cuff tear to his right dominant arm resulting in surgery and reduced function when he was struck by a vehicle traveling 65 mph through a crowded festival in McKean County, Pennsylvania. It was Plaintiffs position that the defendants driving while intoxicated warranted an award of punitive damages, and the jury agreed. This is believed to be the only punitive damage award ever recorded in McKean County history and one of few plaintiffs verdicts in that venue. The punitive award was in the amount of $10,000.00 due to the jurys belief that the defendant had limited assets. Kevin was also named a Super Lawyer Rising Star for the second year in a row in 2014. Kevin is a partner at Dwyer, Black & Lyle, LLP in New York, and focuses his practice on Personal Injury matters.

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Invitation to Submit
By Kurt Zaner

just wanted to remind everyone that we are always accepting submissions for upcoming issues of The Sidebar. Here at the Sidebar, we strive to create content that is helpful, erudite, and entertaining for New Lawyers. We are also proud to provide New Lawyers a platform to reach other like-minded lawyers across the Country, as well as receive national publication credentials. The Sidebar exists for your benefitplease take advantage of this unique opportunity to receive national recognition and contribute to the good fight. As always, we are looking for: 1. NLD Stars nominate any NLD lawyer (even yourself) for any kind of accomplishment. Let us decide if it is significant enough. We want as many AAJ NLD members receiving recognition as possible. 2. Articles dealing with either a relevant legal issue or some kind of practical information for new lawyers. I think the two articles in this edition perfectly exemplify this dichotomy. 3. An interview with a judge an interview with any judicial officer wherein the Judge can dispense helpful advice to New Lawyers 4. A Book Review. Let me know if you want to review a book that may be of interest to young trial lawyers. This editions review of Rick Friedmans new book is spot on.

Kurt Zaner
Zaner Harden Law Denver, CO
kz@zanerhardenlaw.com www.zanerhardenlaw.com

Kurt is a founding partner in Zaner Harden Law. His firm focuses on catastrophic injury and wrongful death cases, both in Colorado and across the country. He is an active member of the Colorado Trial Lawyers Association, serving as a Co-Chair for Membership. He also is on the Board of Governors for the New Lawyers Division in the AAJ.

Looking forward to hearing from you soon!

With Fidelity, Kurt Zaner, NLD Publications Chair

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20132014 NLD Executive Committee

Jessica Klarer Pride Chair The Pride Law Firm 2534 State St., Ste. 411 San Diego, CA 92101 619-516-8166 jpride@pridelawrm.com www.pridelawrm.com

M. Brandon Smith Chair-Elect Childers Schlueter & Smith, LLC 1932 N. Druid Hills Rd., #100 Atlanta, GA 30319 800-641-0098 bsmith@cssrm.com www.cssrm.com

Treasurer Garrett Law Center, PLLC 401 South Boston Street, Suite 2201 Tulsa, OK 74103 918-895-7216 mitchell@garrettlawcenter.com www.garrettlawcenter.com

D. Mitchell Garrett, Jr.

Melissa Hague Secretary Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, PC 1710 Spruce Street Philadelphia, PA 19103 215-735-0330 mhague@anapolschwartz.com www.anapolschwartz.com

Christopher T. Nace Immediate Past Chair and Representative to the AAJ Board of Governors Paulson & Nace, PLLC 1615 New Hampshire Ave., NW Washington, DC 20009 202-463-1999

ctnace@paulsonandnace.com www.paulsonandnace.com

Jackie Olinger Representative to AAJ Board of Governors Maune Raichle Hartley French & Mudd, LLC One Metropolitan Sq. 211 N. Broadway, Ste 2940 Saint Louis, MO 63102 314-244-1397 jolinger@mrhfmlaw.com www.mesotheliomabook.com

Matthew Rosenberg Representative to AAJ Board of Governors Handler, Henning & Rosenberg, LLP 1300 Linglestown Rd., Ste. 2 Harrisburg, PA 17110 717- 238-2000 mrosenberg@hhrlaw.com www.hhrlaw.com

Nelson Boyle Representative to the AAJ Board of Governors Burg Simpson Eldredge Hersh & Jardine, P .C. 40 Inverness Drive East Englewood, CO 80112 303-792-5595

Nboyle@burgsimpson.com www.burgsimpson.com

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VISIT AAJS NEW GRASSROOTS CAMPAIGN TAKE JUSTICE BACK DESIGNED TO LET AMERICANS KNOW WHY THEY SHOULD CARE ABOUT PROTECTING THE CIVIL JUSTICE SYSTEM, AND PROVIDING TOOLS TO FIGHT BACK AGAINST NEGLIGENT CORPORATIONS. LIKE TJB ON FACEBOOK; FOLLOW ON TWITTER.

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