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Bar News - January 14, 2011


Civil Law and the Voice of the Defense Bar

By:


Matthew Cairns
Matthew Cairns, a product and liability defense attorney at Gallagher, Callahan & Gartrell in Concord, is the new president of DRI (formerly known as the Defense Research Institute). He is the first president from New Hampshire and only the third from New England in DRI’s 50 years of serving the defense community.

Cairns has been a DRI member for 15 years and has served as New Hampshire State Representative, Northeast Regional Director, and both second and first vice presidents. Last year he was president-elect. As president, he will oversee all the functions of the organization, including DRI’s 29 substantive law committees, its partnerships with over 50 state and local defense organizations and its relationships with other legal organizations like the ABA.

Q. What are the main areas of focus for DRI as the advocacy organization of business litigators on the defense side? As president of the organization, what are your priorities?

Business or commercial lawyers often are on both sides of a dispute. Recognizing that, DRI’s Commercial Litigation Committee provides education as well as advocacy that is designed to create a level playing field and promote civil justice. We are mindful of the interests of our corporate constituents and seek to address those, while at the same time preserving our civil justice system, including jury trials. In this area, my priorities include increasing our commercial litigation education for members because business litigators are often niche lawyers and appreciate high level substantive education that they cannot find elsewhere.

Q. Lawyers defending corporations in product liability cases and defending doctors in malpractice cases aren’t usually favorably portrayed in popular culture. Are you interested in trying to change that image?

Yes, we are. Our colleagues on the other side of the "v" play an important role in the civil justice system as well. The problem may be that people always see trial lawyers (plaintiff and defense) as a scourge on society until they need one. Most times companies/individuals are willing to pay if they are at fault, but they are not willing to overpay. One of the jobs of DRI is to assure a level playing field and to make our civil justice system truly one of fair compensation, not wealth distribution. My sense is that most plaintiffs’ lawyers in New Hampshire feel the same way. It would be nice to bring that approach nationally.

Q. Turning to your own practice, have the cutbacks in court operations and jury trials affected your practice and your clients? Do chronic delays discourage litigation or provide an advantage to defendants?

It’s all made a dramatic difference as many of my firm’s cases have been continued again and again. Delays, however, are detrimental to both sides. Defendants may pay too much to get things settled rather than carry the case on their books – and plaintiffs may settle for less because of financial distress. In the end, however, it is society that suffers when justice is not served because our courts are not allowed to function as they should.

Q. What are DRI’s particular areas of emphasis?

We emphasize the following: education, justice, balance, economics, professionalism and service. We also seek fair impartial coverage and reporting of trials. Finally, DRI is a place where people can build careers as defense lawyers through education, networking and client interaction.

Q. What are the biggest problems facing DRI?

One of the biggest problems facing our members and clients (as well as plaintiffs) is the cost of litigation. Electronic discovery can cost millions: assembling all the pertinent e-mails and electronically-stored information…and failure to produce these things can result in heavy fines. An important question here is: Who should pay for this kind of discovery? Or should the expense be shared by both parties? Cost also rises with delays and repeated time spent getting ready for a trial that gets bumped because of the overcrowded docket and underfunded court system.

Q. Can you tell us anything about DRI and white collar crime? There have been a lot of such cases recently.

DRI’s committee for government enforcement and corporate compliance is developing programs and publications that look at the increasing use of criminal actions against companies in matters traditionally dealt with by civil and tort law – which were designed to address such things. For instance, if a company ships some lobsters in plastic bags instead of boxes, as specified in the regulations, is that really something corporate executives should be held criminally liable for? This over-criminalization trend has been recognized by recent federal court rulings that have found in favor of corporate officers and criticized US Attorneys who have been too vigorous in enforcing the relevant statutes.

Q. Can you say anything about the BP oil spill? It certainly is one of the biggest stories of the year.

Well, it appears to be a civil case primarily, but there may be some criminal charges, too. Several law firms belonging to DRI are involved – and DRI was one of the first organizations to present a major seminar covering all legal aspects of the disaster. Some of the areas involved are insurance coverage, first and third party product liability for the equipment failure – and then the environmental impact, of course. There are still many toxic habitats….We continue to track all aspects of the case.

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