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Law Journal Articles
These articles
provide views and ideas of thoughtful legal reform advocates.
We hope they prove to be interesting and helpful to you and that
you'll want to strike up a dialog directly with the authors.
Please click on the links below to go to the full description of
the article.
Medical Monitoring - The Right Way and The Wrong Way
Moving Toward the Fully Informed
Jury
Extending the Privilege to
Litigation Communications Specialists in the Age of Trial by
Media
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Medical Monitoring - The
Right Way and The Wrong Way |
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Medical Monitoring - The Right Way and The Wrong Way", authored by
Victor Schwartz, Leah Lorber and Emily Laird of Shook Hardy & Bacon,
has just been published by the
Missouri Law Review. This Article discusses the accepted scientific and medical
approach to medical monitoring and explains the considerations
involved.
The
article discusses the general scientific and medical standards
for when asymptomatic people (e.g., the uninjured plaintiffs in
many toxic tort suits) should receive medical monitoring --
i.e., the patient is at enough of an increased risk of
developing the disease that the benefits outweigh the risks;
detection is possible before the disease would show itself
through patient symptoms; early detection can lead to early
treatment or cure of the disease; and the potential benefits of
medical monitoring outweigh its costs.
The
article then talks through the history of medical monitoring as
a legal claim and discusses various cases, ending with a
recommendation that if indeed the law must be changed, it should
be changed through the legislature.
View Article (PDF)
Victor Schwartz
Shook, Hardy & Bacon |
Leah
Lorber
Shook, Hardy & Bacon
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Emily Laird
Shook, Hardy & Bacon
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Moving Toward the Fully
Informed Jury |
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"Moving
Toward The Fully Informed Jury", authored by
Steven Hantler of Chrysler LLC, and Victor E. Schwartz, Cary
Silverman and Emily Laird of Shook Hardy & Bacon,
has been published by the
Georgetown Journal of Law & Public Policy
at
Georgetown Law in
Washington, DC.
This article may be of exceptional importance to judges and
defense counsel addressing an issue that permeates the
development of the common law.
The article addresses five rules that literally blindfold a jury
from knowing about highly relevant and material evidence. When
such rules were formulated, they had a strong and reasonable
rationale, but in each case that basis has diminished in
importance.
Since judges, not
legislatures, created these rules, judges have the power to
change them. The article shows that the “rationale” for each
rule, over time, has been seriously undermined.
Defense counsel can
foster changes in tort law when reasons for the original rules
fade. The defense can use this principle to argue for legal
change in the courts. The old
adage, when the reason for a rule ceases, so should the rule
itself, is applicable in each of these situations. That basic
truth cuts through this article.
The article address
these five areas:
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Where a
jury does not know that a plaintiff has already received
compensation for an injury (i.e., the collateral source rule);
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Where
a jury does not know if a plaintiff was wearing a seatbelt;
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Where a
jury does not know that a driver of a vehicle was under the
influence of alcohol or drugs, speeding, or asleep at the wheel
(this can be extended to other situations where a plaintiff's
wrongful conduct is not known by the jury);
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Where a
jury does not know that if it finds a defendant even 5% or 10%
liable, that the defendant may end up paying 100% of the damages
(i.e., the joint and several liability rule); and
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Where a
jury does not know that a plaintiff was exposed to asbestos from
sources other than the defendant.
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Steve Hantler
Chrysler LLC
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Victor Schwartz
Shook, Hardy & Bacon |
Leah Lorber
Shook, Hardy & Bacon
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Cary Silverman
Shook, Hardy & Bacon
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Emily Laird
Shook, Hardy & Bacon
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Extending the Privilege to
Litigation Communications Specialists
in the Age of Trial by Media |
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“Extending
the Privilege to Litigation Communications Specialists in the
Age of Trial by Media,” is one of the first law journal
articles that discusses the case law relevant to hiring outside
litigation communications support under the attorney-client and
work-product doctrines. It was published in early 2005 by
CommLaw Conspectus, the law journal of the Columbus
School of Law at The Catholic University of America.
The authors, Steven Hantler
of Daimler
Chrysler, and Victor E. Schwartz and Phil Goldberg of Shook
Hardy & Bacon, also offer insights into the tremendous impact
the media has on how individual lawsuits are resolved and
examine the law relevant to the ethics of responding in the
media. Because courts cannot control trial publicity, defense
lawyers and litigants have a right to engage the media and
should be aware of the potential legal issues from the outset.
Download the Article
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If you have a law journal
article related to legal reform that you would like posted to this
collection, please send it by email
to KShayon@lawexec.com
or in printed form to Kristyn Shayon, 3 Wilrich Glen Road, Morristown,
NJ 07960.
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