California Learning

CLM members and fellows are set to descend on the city of San Diego to attend the CLM 2012 Annual Conference, and with good reason. Presenters have poured passion, expertise, time, and intense thought into providing attendees with sessions that are worth the time out of the office and that give new information for increased understanding and success.

The annual conference has grown from 200 attendees in 2008 to 1,250 today. This tremendous growth is attributable to the numerous elements that separate the CLM annual conference from those held by other litigation organizations. One such element is the roundtable format that provides the opportunity for a high level of attendee communication.

“Roundtables allow members and fellows to interact with each another in an environment where lively debate and discussion is not only acceptable but encouraged,” says Conference Education Committee Chair Anne Blume. “They provide an excellent opportunity to have a vigorous dialogue about strategy, procedure, policy, ethics, a point of law—or anything else.”

Another way the CLM conference differs is that it is truly a conference for and by its membership. The Education Committee does not create an agenda for the members to fill.

“It’s just the opposite,” says Blume. “The CLM membership creates the agenda with their proposals and their ideas. Invariably, at the end of every conference someone will make a comment and ideas for the next conference are born. It happens every year.”

With more than 325 speakers in 80 sessions, the conference is punctuated with networking outings, charity support, and a keynote presentation from George Fay, vice president of worldwide claims for CNA and Major General (retired), U.S. Army Reserve.

Below we highlight a few points from eight of the many exciting sessions in store for you this year. For the full scope of each session and for a complete schedule, go to TheCLM.org.

Beyond the Numbers: The Art of Litigation Management and Client Retention

Presenters: Charles Ehrlich, RiverStone Resources LLC.; Alex Jivan, Farmers Insurance Group; Karl W. Leo, Hendricks Holding Co., Inc.; Steven Pearson, Meckler Bulger Tilson Marick & Pearson; and Mary Rowe of Markel Corporation.

When your invoice shows up every 30 days and does not explain the “why” of what you did or the outcomes, you run the risk of losing your client. Today, it’s no longer acceptable to simply bill for time. You need to communicate at new levels with your clients to maintain high retention rates. That means finding out their expectations, informing them of the progression of your work, and giving honest assessment of the outcomes.

“We’re going to focus on the differentiation between litigation and litigation management,” says presenter Chuck Ehrlich. “There is a gap between lawyers who enjoy the intellectual aspects of the job and clients who don’t have any interest in that at all and see a legal matter as a problem to be solved expeditiously at a reasonable expense.”

With a panel consisting of highly seasoned outside counsel, senior claims professionals, and corporate counsel, this presentation will demonstrate the use of practical litigation management tools in both complex and “typical” litigation scenarios. It will also look at what effective litigation management means and why it is the key to client retention.

The willingness to develop a deeper relationship with clients and understand their businesses should not be rare. “We’d like people to be able to walk a mile in their client’s shoes and understand what it is they find important and what works for them,” says Ehrlich.

Affinity Groups: Advantages and Disadvantages

Presenters: Dan Boho, Hinshaw & Culbertson LLP; Paul M. Finamore, Niles, Barton & Wilmer LLP; Karen D. Fultz, Cozen O’Connor; Leslie Lumpkins, LWG Consulting; Preston McGowan, Chubb; and Cisselon Nichols Hurd, Shell Oil Company.

This is a roundtable that focuses on one of today’s hottest topics: affinity groups. A large percent of Fortune 500 companies have affinity groups, which are typically formed voluntarily by employees to address issues of common interest relating to a particular characteristic commonly associated with diversity, such as race or gender.

This session recognizes the trend in corporate America to have diversity committees, women’s forums, and the like. “We need individuals of different backgrounds to come together in creating diverse opportunities within their organizations,” says presenter Karen Fultz. “We’re continually working to get diverse candidates into decision-making positions, and these groups are helpful in elevating employee sensitivity to different backgrounds.”

This roundtable will touch on the history of these groups and then dive into their contribution to business development and increased employee commitment. It will examine the pros and cons as well as the key elements needed to achieve real success, such as high-level interaction. “Management involvement is important to help groups move forward. It also can help them to stay on task and remain in line with the company mission,” says Fultz.

Companies considering affinity groups want to know what the impact will be on their company, how they promote inclusion, how they affect the bottom line, and if there is a need for them in the future. Having conducted extensive research, the panel will provide these answers and will encourage interactive discussion about the impacts that can occur within an organization.

Oil and Water Do Not Mix, But When They Do, There Will Be Litigation

Presenters: Tracey Dodd, U.S. Risk Management, LLC, Marc Gaffrey, Hoagland, Longo, Moran, Dunst & Doukas LLP, Guy Hollingsworth; David McMahon, Barger & Wolen LLP, Gary Van Lieu, O’Toole Fernandez Weiner Van Lieu, LLC.

Oil spill-related litigation has been big news over the past several years. From the Deepwater Horizon catastrophe to the devastating pipeline spill in the Yellowstone River, these cases have been the subject of major claims and litigation nationwide.

This roundtable is spotlighted because these types of events cover a wide variety of issues, including but not limited to: serious bodily injury, water pollution, natural resource damage, property damage, business interruption, loss of good will, and more.

“It is a major component of our litigation environment and atmosphere in the states,” says presenter Guy Hollingsworth. “Cases that involve groundwater contamination and soil contamination present rather expensive litigation and remediation costs.”

The objectives of the roundtable are to provide a primer on oil spill-related litigation and the differing regulations, statutes, and case law in which the claims professional must be conversant to capably handle such matters.

“We want to share our collective knowledge, education, and experience in defense of these cases—what works, what doesn’t work, and coverage changes” says Hollingsworth. “There has been a plethora of information regarding this area, but there are always new cases, new case law, and new science. It’s particularly useful to stay abreast of recent developments.”

Conflict-Free Counsel: The Approval & Management of Defense Counsel

Presenters: Lance Albright, QBE; Tim Diveley, Fireman’s Fund Insurance Company; Andy Forstenzer, Crump Group, Inc.; Robert T. Horst, Nelson Levine de Luca & Horst; and Deanna Johnston, Fireman’s Fund Insurance Company.

An issue near and dear to (almost) everyone’s heart is the selection of defense counsel. Because it is integral to efficient and effective claims resolution, continually fine-tuning your skills in this area is warranted. 

This roundtable will tackle tough topics arising in jurisdictions across the U.S. involving the selection, use, and performance of defense counsel. While insurers and policyholders pursue the involvement of effective, conflict-free counsel, this session will—from the carrier’s perspective—address when the insurer and policyholder disagree about defense counsel and how to work through the related issues.

“From the management level, we’ll discuss some of the points arising from case studies that are geographically tailored and may help solve some of the regular problems that managers and executives are seeing that tend to arise time and again but aren’t always easily solved,” says presenter Robert Horst. “We have decades of national experience on this panel, and when you combine it into a group like this, it allows for a deep discussion and debate. It’s going to be really good.”

The panel will be giving simultaneous consideration of carrier and policyholder rights and responsibilities. When balanced that way along with an open-minded approach to some gray areas, it promises to provide a productive environment.

The Credible Corporate Witness: What Does It Take to Prepare the Corporate Representative for Deposition?

Presenters: Patricia Alvarez, The Alvarez Law Firm, P.C.; Kevin Foley, Reminger Co., LPA; Gytis Gavelis, Catlin Insurance; Joseph Golian, Dickie McCamey & Chilcote; and Heather Maher, Borden Dairy Company.

Too many cases are won or lost on the testimony of a corporate representative, which means no one can afford to ignore the importance of this session. This roundtable will provide a roadmap for answering tricky questions, navigating around “created” facts, and testifying with credibility.

To start, the scope of the corporate definition should be set out before the deposition itself so the witness can then research the facts necessary to respond to the inquiries. That preparation is key to how successfully a corporation can sustain itself in the deposition process.

“Early on, I learned the importance of proper preparation,” says presenter Gytis Gavelis. “Many attorneys are geared toward defending the facts of a case. However, when a corporate representative is deposed, they are actually not testifying on the facts of the case but on their corporate knowledge. The goal of this panel is to help attendees conduct proper preparation of the witness in order to successfully withstand a corporate deposition, and for counsel to walk away with ideas on how best to construct that preparation so that witnesses are fully prepared to field questions and prevent assumptions from being melded with facts to create new ‘facts.’”

The choice of whom to select for testifying as a corporate representative is almost as important as the testimony itself. The panel will consider the most likely person to designate, which is dependent on the testimony that is being elicited.
Core Content and Emerging Topics

Each year the Conference Education Committee seeks to not only provide education on core management subjects but emerging topics and trends, as well.

This year there are offerings in 15 categories, including bad faith, construction, insurance coverage, diversity, environmental, fraud, litigation management, Medicare, municipal, premises liability, product liability, professional liability, transportation, and workers’ compensation. The committee also added courses to address the growing trend of claims and litigation involving cyber risks.

“This year, we received many proposals on technology-related issues and we selected a few of them to stay current with this burgeoning trend, which we think will continue because of society’s growing reliance on electronics and the legal issues that arise when there are problems,” said Blume. Here we highlight three courses surrounding this fast growing issue.

Whose Line Is IT Anyway? Unwelcome Cyber-Surprises in Risk Management and Litigation

Presenters: Marta Garrett, ProAssurance Corporation; Shari Claire Lewis, Rivkin Radler LLP; Alan Parker, Reminger Co., LPA; and Caryn Silverman, Endurance Specialty Insurance, Ltd.

Today, every case and every situation is potentially a cyber case. The impact of technology on litigation is often underestimated because the law tends to lag behind technology.

“The fact that you’re defending a garden variety personal injury action or a professional liability, D&O, or any other kind of claim does not insulate you from cyber issues,” says presenter Shari Lewis. “Every case needs to be handled as a potential cyber case.”

The session will provide several hypothetical scenarios for careful review, all of which, to use the phrase from Law and Order, are ripped from the headlines.

The Curious Case of the Malfunctioning Tablet: Cyber Risks and You

Presenters: David Hallstrom, CNA Technology; Danielle Librizzi, CNA; John Mullen, Sr., Nelson Levine de Luca & Horst; Christian Novay, Wilson Elser Moskowitz Edelman & Dicker LLP; and Richard Tarangelo, CNA.

What new exposures are tablets bringing into the world? Simply put, the way tablets are being used has evolved much more rapidly than the ways to secure the product. Increased encryption and security for tablets will come but are not quite ready yet.

“We’ll look at how the technology is being used, privacy issues, the security of the systems, and the potential damages if that information is lost, knowing the limitations of the systems,” says David Hallstrom.

The panel will present various real-world scenarios and walk step-by-step through various cause-and-effect outcomes that result from action or inaction.

If You Use It, Don’t Lose It: Law Firms at Risk for Cyber Breaches

Presenters: Joe DePaul, Arthur J Gallagher; Celeste King, Walker, Wilcox & Matousek; and Lauren D. Wilkins, Langlois, Wilkins, Furtado & Metcalf, P.C.

Law firms hold a tremendous amount of information, which can be in the form of client files that contain potentially confidential financial, medical, and healthcare information. They also hold confidential corporate information, such as applications for patents, copyrights, and trademarks.

In the business setting, if that information were to fall into the hands of a third party, it could be quite problematic, especially for the entity responsible for its protection. This roundtable explores cyber risks to law firms and considers insurance implications in the event of a breach.

“We want attendees to understand that there are exposures they are probably not thinking of,” says presenter Joe DePaul. “There are ways to mitigate those exposures, and in the event that you have such a breach, there are ways to financially mitigate the loss to the firm.”

Better Every Year

“We work harder each year to ensure that members and fellows have the best possible education at the annual conference,” says Blume. “Attendees will come away from this year’s event better equipped to meet the demands of their clients and their organizations and, we trust, looking forward to coming again in 2013.”