Litigation Management Research Articles

Mapping complications in thyroid surgery: statistical data are useful for medico-legal management of a recurrent safety issue

Quality of care assessment is a crucial tool for patient safety implementation. Litigation relating to thyroid surgery is one of the most represented sectors also due to the continuous increase in the number of thyroid interventions. Given the incidence of the problem, the present study aims to outline an operational methodology for risk mapping and litigation management in thyroid surgery. The study was conducted through the analysis of data collected at Umberto I General Hospital in Rome from 2007 to 2018. All thyroid surgery claims were included and, subsequently, a descriptive statistical analysis of the categorical variables was performed with the representation of frequencies in absolute terms and as a percentage. The results obtained show that in 94% of cases (44 cases) the reported event consists of incorrect treatment. The most frequent adverse events were identified in unilateral or bilateral recurrent nerve lesions (31; 70%); incomplete removal of the thyroid gland (6; 14%), post-surgical hypoparathyroidism (4; 9%), aesthetic damage secondary to surgical scars (2; 5%), dental avulsion during intubation maneuvers (1; 2%). The experience derived from the risk mapping through management of thyroid claims proved it to be a reactive tool of considerable importance in clinical governance. The promotion of measures aimed at improving the satisfaction of some critical parameters identified in the litigation management activity such as adherence to the indications for surgery, the preoperative diagnostic path, and the adequacy of the surgical report allows to further implement the quality of care in the surgical treatment of thyroid pathology.Graphical

보험회사의 채무부존재 확인의 소에 있어 확인의 이익에 관한 판례 평석

In case where there is a dispute between an insurance company and an insured as to whether an insurance company should pay insurance proceeds and/or as to how much insurance proceeds should be, a lawsuit for negative confirmation, claiming for a judgment to declare that the insurance company should not be held liable to pay any insurance proceeds, is the only possible form of a lawsuit that an insurance company can bring preemptively before a court. A plaintiff who wishes to bring such negative confirmation/declaration claim should have legal interest for such confirmation as it is legal requirement for a confirmation claim, and the Korean court has generally accepted that an insurance company has the legal interest to bring a negative confirmation/declaration claim as long as there is a dispute between an insurance company and an insured regarding insurance coverage and/or insurance proceeds. However, recently, in the above mentioned case, the Korean Supreme Court (en banc) had in-depth discussion as to whether the negative confirmation/declaration claim brought by an insurance company should be restricted or not. Especially, three supreme court judges made a dissenting opinion holding that an insurance company must show special circumstances on order to bring a negative confirmation/declaration claim, especially considering the public nature of insurance, legal obligation of an insurance company to provide protection for an insured, the equity that is required between the parties to an insurance contract and the possible abuse of negative confirmation lawsuit by an insurance company. Although it may be necessary to prevent the abuse of a lawsuit by an insurance company in order to protect an insured, it is difficult to accept the dissenting opinion because the right to bring a lawsuit is constitutional right of an insurance company, and if the court restricts the negative confirmation claim made by an insurance company by requiring additional conditions for “legal interest for confirmation” without a specific provision in a legislation, it could be considered as infringement of such constitutional right. As rightfully pointed out by the supplementary opinion to the majority opinion in this Supreme Court case, the negative confirmation/declaration lawsuit brought by an insurance company could also be beneficial to an insured as it will lead to a swift resolution of the dispute. Moreover, the special circumstance that the dissenting opinion mentioned seems very vague and abstract. So, if the Court requires the special circumstances for the negative confirmation claim, it will be too burdensome to both parties as there will be another dispute over the existence of such special circumstances. Currently, there are ways to control and suppress abusive and/or excessive litigation by an insurance company - (i) internal control system such as litigation management committee established within an insurance company and (ii) external control system such as public disclosure of litigation status of each insurance company and evaluation by the relevant authority. The recent statistics show that the number of litigation cases brought by an insurance company has gradually decreased over the years as a result of existing control systems.

As the Water Grinds the Stone: Comparison of Represented and Self-represented Appellant Populations in the Federal Court of Appeal

This article reports a quantitative and statistically reliable population investigation of 552 Federal Court of Appeal proceedings that were appeals by represented and self-represented appellants who, in 2016 or 2017, appealed decisions of the Federal Court or Tax Court of Canada. Appeals by the Crown, non-Crown represented appellants, and self-represented appellants exhibited markedly different frequencies at which appeals were granted, and patterns for how appeals were terminated. Nearly half of Crown appeals were granted, but less than one in twenty self-represented appellants had any degree of success. While 70% of appeals conducted by lawyers completed the appeal process, less than 40% of self-represented appellant proceedings resulted in a full appeal panel hearing. Incomplete appeals by self-represented appellants usually terminated prior to the appeal record stage, and typically were either abandoned or discontinued. The time required to complete appeals for represented and self-represented appellants is similar. The high observed frequency of problematic litigation records for self-represented appellants supports the hypothesis that a “Distillation Effect” is concentrating abusive litigants in appellate forums.
 High resolution investigation of self-represented appellant subgroups revealed differences within the overall self-represented appellant population. Self-represented appellants emerging from the Federal Court and Tax Court of Canada are different populations. The former were much more likely to have an abusive litigation history, while the latter voluntarily discontinued appeals, and were never subject to Federal Court of Appeal vexatious litigant management steps. Self-represented appellant proceedings that terminated prematurely or that were conducted by persons who are subject to court access restrictions had significantly more filed documents and docket records. Litigation management steps did not reduce the Registry and Court workload resulting from self-represented appellants subject to court access restrictions. These observations challenge modelling self-represented litigants as a single population with uniform characteristics.

Professional responsibility in obstetrics in Morocco: analyzes of litigation files between 2015-2018

Reflections on professional responsibility in Morocco are in clear development. Health professionals and especially obstetricians are reporting a dire situation due to limited resources and the lack of a clear legal framework that protects them, given that litigations are on the rise in recent years. We collected medical records of obstetric litigations adjudicated at the litigation department of the Ministry of Health in Morocco over a period of three years (2015-2018), with the aim of assessing the current situation of professional responsibility in obstetrics and indentifying failures in obstetric litigation management as well as developing recommendations tailored to the Moroccan context. Among the 111 medical litigations adjudicated over the study period, 56% (n=62) concerned obstetric activity and 84% (n=54) complications during labor; brachial plexus was the most registered complaint (61.3%; n=39). The analysis of data on medical expertise from these medical records revealed a non-compliance with quality in 88.7% of cases (n=55), the condemnation of professional birth attendants in 93.5% (n=58), a lack of documentation in the medical records in 35 % of cases (n=22). Litigations are more recorded in obstetrics than in other areas of the public health sector in Morocco. The lack of documentation and the complexity of management of the litigation process as well as the tendency to compensate patients in the absence of a structure of medical care for victims of therapeutic hazards are the most frequent causes of claimants´ gain.

The Grim Parade: Supreme Court of Canada Self-Represented Appellants in 2017

Self-represented litigants (SRLs) are persons who appear in legal proceedings without a lawyer. This study is a document- and court record-based quantitative, statistically valid profile of 122 SRLs who filed 125 leave to appeal applications in the Supreme Court of Canada in 2017. Male SRLs outnumbered female SRLs almost 3:1. Most SRLs focused on their perceived rights and did not engage Canadian law. Instead, most study SRLs claimed lower court judges were biased or engaged in illegal or criminal conduct. Over a third of the study SRLs filed two or more Supreme Court leave to appeal applications over their lifetime. One filed 19 applications, all unsuccessful. Nearly one in four study SRLs were subject to court access restrictions, an extreme form of litigation management. Problematic litigation activity was associated with repeated Supreme Court appearances. Only a small number of study SRLs self-identified or were identified by a court as having mental health issues, but nearly one quarter of SRLs’ litigation records exhibited an atypical pattern of expanding litigation identified by mental health professionals as a characteristic of querulous paranoia. This investigation successfully developed a profile of the 2017 Supreme Court leave to appeal SRL population and their litigation activity and provides a model for future parallel investigations. This population is very unlikely to be representative of Canadians SRLs as a whole, but it represents a comparator and identifies characteristics that are potentially useful to understand what occurs in other Canadian appeal courts.

Litigation management process in construction industry

For an Engineering, Procurement and Construction Management contract, collaboration between the different actors is essential from the very beginning of the project to consider all the constraints. Working upstream reduces the occurrence of problems that could lead to claims. As long as trust and dialogue are present, disputes can be settled by agreement, but if dialogue is cut off, the negotiation phases are over. The solution is then to move to alternative dispute resolution methods involving outside third-party mediator. If, despite this, no agreement is reached, the last option is to proceed to legal proceedings. This paper develops a litigation management process for the construction industry in Quebec (Canada) to guide future litigation project managers, whether they are on the plaintiffs of the defendant’s side of the claim. The proposed process links the litigation team members, lawyers and experts. The process divided into ten phases, contains sequences of activities, resources, input and output documents and deliverables. The process was validated in terms of standardization in order to assess its capability to support different construction types of projects and contracts. With this process, litigation managers will be able to oversee litigation through a better visibility of the activities to be planned and forecast costs.

Improving of judicial education through the institutional development of the National School of Judges of Ukraine

The article reveals the peculiarities of establishment and institutional development of National school of judges of Ukraine (NSJU) as an institution with a special status in the judicial system. The paper discusses main methodological principles for initial and periodical training of judges, as well as special training of candidates for the position of judge, which are defined in the Concept of National Standards for Judicial Education, approved by NSJU as a special document. According to the values which are declared in the document the main scope of judicial education is not only giving knowledge but also special skills development. It is the reason for implementing of interactive approaches to the learning process. The institution aims to integrate digital innovations into judicial education. It is the digitization of judicial education that will allow NSJU to move to the identification of individual educational needs of the judge and the formation of personalized training programs. Distance learning as a form of periodic training of judges plays a significant role in the development of judicial education. This form of training makes educational process flexible and dynamic, creates an opportunity for each listener, regardless of the level of court and judicial specialization, to work on the recommended personal schedule of the course. The article also deals with the specialties of initial training of candidates for the position of judge which is conducted in accordance with European standards for the organization of judicial educational events. In addition to law courses, the focus of initial training is also on issues of judicial ethics and integrity, anti-corruption legislation, psychological adaptation to judicial activity, judicial discipline, litigation management and alternative dispute resolution, international and European law. Interactive trainings and internships for candidates for the position of judge are aimed to expand and deepen legal knowledge, as well as to develop judicial skills and understanding the social context of justice. It is declared in the article that NSJU has introduced the Judicial Education Assessment Methodology, which has become a criterion for the effectiveness of the School's activity as a judicial education institution and is an important element of improving of all components of the educational process. Key words:National School of Judges of Ukraine, judicial education, methods of judicial education, training of judges, special training of candidates for the position of judge. References Strategy for the Reform of the Judiciary, Judiciary and Related Legal Institutions for 2015-2020: Approved by Presidential Decree of May 20, 2015 No. 276/2015. URL: http://zakon.rada.gov.ua/laws/show/276/2015 [Ukr.]. On the Judiciary and the Status of the Court: Law of Ukraine in Ed. from 02.06.2016. URL: https://zakon.rada.gov.ua/laws/show/1402-19/ed20160602 [Ukr.]. The concept of national standard judicial educational institutions: Annex 5 to the NSAU Regulations, required order dated 24.06.2016 No. 34. URL: http://www.nsj.gov.ua/en/about/symbols/ [Ukr.]. NSJU Development Strategy for 2016-2020. URL: http://www.nsj.gov.ua/files/14676144821452070855%D0%A1%D1%82%D1%80%D0%B0%D1%82%D0%B5%D0%B3%D1% 96% D1% 8F_% D1% 80% D0% BE% Opinion No 4 (2003) Advisory Councils of the Council of the European Courts, with respect, Committee on the Activity and the Ministry of Justice at the national and European levels, dedicated to November 27, 2003. URL: https://court.gov.ua/inshe/mss/ [Ukr.].

Advanced Loss Eventuality Assessment and Technical Estimates: An Integrated Approach for Management of Healthcare-Associated Infections.

Healthcare Associated Infections (HAIs) represent a crucial issue in health and patient safety management due to the persistent nature, economic impact and possible preventability of the phenomenon. Compensation claims for damages resulting from HAI could provide insights that can improve the understanding of suboptimal steps in the therapeutic process, enable an estimate of costs related to infectious complications, and guide the development of planning tools for implementation of the quality of care. This paper analyzes all the HAI claims received at the Umberto I General Hospital of Rome across a five-year period with the aim of outlining a methodological approach to the litigation management and of characterizing the economic impact of infections on health facilities resources. All claims received during the study period have been classified according to the International Classification for Patient Safety (ICPS) system. Subsequently, claims related to Healthcare Associated Infections were evaluated through an innovative tool for determination of the risk of loss, the Advanced Loss Eventuality Assessment (ALEA) score. The results obtained demonstrate the relevance of a correct management of HAI claims in the administration of a health care system. Specifically, the cases examined during the study highlighted the significant impact of infectious diseases of a nosocomial nature in terms of frequency and economic exposure. The proposed methodological approach allows a productive analysis of the internal processes, providing fundamental data for the refinement of the preventive strategies and for the rationalization of the resources through the expenditure forecasts. Article Highlights Box: Healthcare-Associated Infections represent an essential element to consider in the management of health facilities. • Many studies highlight the economic burden of Healthcare-Associated Infections in health policies. • Litigation management represents a useful resource in the prevention of Healthcare Associated Infections. • Appropriate clinical risk management policies in the field of Healthcare-Associated Infections allow the implementation of preventive measures, the reduction of the incidence of the phenomenon and the quality of care. • The costs of Healthcare-Associated Infections can be limited through a systematic methodological approach based on Advanced Loss Eventuality Assessment and technical estimate of the value of each case. • The application of a standardized system would be desirable in any health facility despite the potential methodological, technical, behavioral and financial issues.

Fractured Justice: An Experimental Study of Pretrial Judicial Decision-Making

This Article reports on the first controlled empirical examination of what happens when judges exercise their broad discretion to resolve non-dispositive pretrial disputes. Experimental studies of judicial decision-making are rare, and experimental studies of pretrial dispute resolution by predominantly state court judges are non-existent. Data was collected from the presentation of nine simulated disputes about discovery and litigation management in 166 chambers conferences before 61 volunteer judges. The study results indicate that judges faced with the same facts usually fracture in deciding the dispute. This variation is not attributable to groups of judges deciding in a consistent way for some parties. Very few judges showed marked tendencies to defer decisions or rule for one type of party. Nor did judicial characteristics, such as gender, experience or measures of ideology, explain the simulation results. These results are surprisingly consistent with another experimental study on district court judicial decision-making in criminal sentencing which found a similar pattern of fractured outcomes. The study results also challenge the conventional wisdom that the addition of factors or presumptions produces more predictable and consistent decision-making, instead finding that the disputes guided by the vaguest of standards created more agreement among judges than when the relevant rule contained a multiple factor test or even a presumptive outcome. Given the varying results when judges exercise their discretion to determine disputes, changes to the civil procedure rules to limit judicial discretion advocated by some scholars would require an upheaval in current judicial decision-making practice.

Biotech Patent Eligibility: A New Hope

The practical effect of the Supreme Court’s decisions in Mayo Collaborative Services v. Prometheus Laboratories, Inc. and Alice Corporation Pty. v. CLS Bank International has been to deny patent eligibility to innovative patent applications and patents, particularly in the fields of biotechnology and computer software. On July 5, 2016, the Federal Circuit in Rapid Litigation Management Ltd. v. CellzDirect, Inc. ruled that the claimed methods of cryopreserving hepatocyte cells are patent eligible under 35 U.S.C. § 101 because they are not directed to a natural phenomenon. The patentees discovered that some cells in a hepatocyte pool could survive multiple freeze-thaw cycles. The claims recite a method of producing a preparation of hepatocytes that can be frozen and thawed at least twice. The method steps include freezing and thawing a sample of hepatocytes, performing density fractionation to separate viable and non-viable cells, recovering the viable hepatocytes, and refreezing the recovered hepatocytes.The Federal Circuit decided that, although dependent on a natural phenomenon, the inventors’ claims were a patent eligible application of their natural discovery. As a result, the court may have opened up a new avenue for patent seekers to circumvent the restrictive eligibility requirements established by the Supreme Court. This Note provides a brief history of patent eligibility doctrine and the cases leading up to the decision in CellzDirect. It next analyzes the CellzDirect decision and its possible interpretations. Finally, it argues that this case represents an effort by the Federal Circuit to limit the Supreme Court’s extreme anti-patent position in Mayo and Alice by cabining the eligibility restrictions to diagnostic discoveries.

New York's Lead Contaminated Tap Water: Litigation, Insurance Coverage, and Risk Management

ABSTRACTSince the Flint water crisis almost two years ago, municipalities nationwide, including several towns and school systems within New York State, have discovered unacceptably high levels of lead in their drinking water. Given these discoveries, there is bound to be an increase in lawsuits and claims for insurance coverage–especially because the same public health concerns have already caused lead to be heavily litigated in the context of lead-based paint. This article examines the subject of lead-contaminated tap water and discusses issues pertinent to attorneys who may prosecute or defend a case involving it.

Accidental injection of patent blue dye during gynaecological surgery: Lack of knowledge constitutes a system error

The authors report a case in which an intravenous injection of Patent Blue V dye instead of Indigo Carmine was given during routine gynaecological surgery. The patient presented with temporary arterial (spurious) desaturation and skin discoloration over a 48-hour period. Pharmacological differences between these dyes are described. Root cause analysis based on the ALARM (Association of Litigation and Risk Management) model is presented. The authors emphasise that use of this model should not be limited solely to describing and correcting well known systems errors such as working conditions or teamwork and communication. Furthermore, they conclude that insufficient knowledge must also be recognised as a systems error and as such should be sought out and corrected using similar strategies to those used to discover other contributory factors, without allocation of blame to any individual.

Ethical Issues for Defense Counsel in Employment Practices Liability Insurance Litigation

This article originally appeared in the January 2013 Employment Law Committee newsletter. I. Employment Practices Liability Insurance Overview Employment Practices Liability Insurance (EPLI) covers a broad range of discrimination and harassment claims including indemnity and coverage for the cost of defense. EPLI extends to the business itself as well as its officers and employees. Coverage is typically triggered by an administration charge, lawsuit, or simple demand letter. EPLI policies typically cover a wide array of employment claims including 1) wrongful termination, 2) discrimination, and 3) retaliation. Most EPLI policies also provide coverage for violations of the Family and Medical Leave Act and various forms of harassment. EPLI coverage normally defines damages as amounts in excess of the retention including settlements, judgments, prejudgment and post-judgment interest, attorney fees and costs, defense expenses, and back and front pay awards. EPLI policies almost always exclude coverage for workers compensation, ERISA, unemployment, COBRA, wage and hour, NLRB, and breach of contract. The policies also exclude fines, penalties, taxes, amounts due under an express employment contract, stock options and deferred compensation, and injunctive relief. Additional exclusions in EPLI policies exist for bodily injury and property damage and intentional wrongdoing. II. Common Ethical Issues that Arise from EPLI Insurance The insurer's notice of assignment of a new law firm to defend the insured invokes a myriad of ethical issues that have implications for the insured, the insured's day-to-day lawyers, the assigned panel counsel, and the insurance company. These issues cannot be fully analyzed in a short article. Rather, the purpose of this article is to identify some of the prominent and ethical issues involved in many EPLI cases. Some of these ethical issues include: 1) identifying the client; 2) determining who controls the selection of defense counsel; 3) analyzing whether a reservation of rights changes who controls the selection of counsel; 4) complying with litigation management guidelines; 5) determining who manages the litigation; and 6) analyzing who controls the decision to settle. A. Who is the Client? Every EPLI claim that triggers coverage will involve 3 players--the insurance company, the policyholder, and the defense attorney. This is referred to as the tripartite relationship. Additionally, there is often a fourth player when the policyholder has a regular outside law firm that advises it on day-to-day matters and sometimes serves as outside general counsel. Depending on the jurisdiction, defense counsel retained by the insurance company will have either one client (the insured) or two clients (both the insured and the insurer). The prevailing view in most jurisdictions is the in which the insured and the insurer are considered clients of the defense attorney. Under the Two-Client the primary client is the insured. A growing minority of jurisdictions follow the Theory, which provides that the insured is the attorney's only client. Many legal commentators note that the One-Client Theory is consistent with ethical rules that govern attorneys and require them to have undivided loyalty to their client. B. Who Controls the Assignment of Counsel? Most EPLI policies are duty to defend policies. Absent any significant coverage issues that might give rise to a conflict of interest between the insured and the insurer, the insurer may generally rely on the policy contract language providing it with the right to select defense counsel. (1) One issue that significantly alters the insurer's right to appoint counsel is when the insurer defends pursuant to a reservation of rights. C. The Reservation of Rights Dilemma It is fairly common for an employment complaint filed against an insured to state both covered and non-covered claims or to be written ambiguously so it is difficult to determine whether a particular EPLI policy exclusion applies. …

Effectively Managing Increased Litigation and Enforcement

Recent legal developments suggest that stability in the securitization market—particularly with regard to subprime mortgages and asset-backed CDOs—continues to be tested by intense litigation and enforcement activity. Structured finance litigation has caused litigants and the courts to apply traditional legal concepts to complex and sometimes unfamiliar financial transactions, resulting in unique circumstances that mandate particular diligence in litigation management.

The Role of the Prinicipal: A Multifaceted Role

Principalship in the twenty-first century is complex and diverse. A principal is responsible across the domains of educational leadership, curriculum development, teaching and learning theory and classroom practice, spirituality / values education, student welfare and discipline, including reporting to agencies, school finances and budget, property management, risk mitigation, litigation management, staff welfare and industrial relations, marketing, selection and dismissal of staff and students, strategic planning and vision, outdoor education, and depending, on the governance of the school, reporting to statutory authorities, School Council, Church or denominational hierarchy.

Risk Management Handbook for Health Care Organizations

Risk Management Handbook for Health Care Organizations

A ‘reformed’ litigator describes a creative complex litigation management approach

AbstractAn international healthcare company installed a flexible, comprehensive process that drives its investigations into early resolution and litigation management issues. Thomas L. Aldrich, of Glenview, Ill., provides the details.

Shareholder Litigation: Reexamining the Balance Between Litigation Agency Costs and Management Agency Costs

Shareholder lawsuits are a principal legal means to control management agency costs in corporations, yet they generate their own agency costs from the attorneys who bring representative litigation. The key policy question, and one that is central to good corporate governance, has long been how to properly balance the positive management agency reductions from shareholder litigation against the often-maligned litigation agency costs. We address the tradeoff inherent in this debate using our empirical study of shareholder litigation in Delaware. Our data set of all 1000 corporate fiduciary duty cases filed in Delaware in 1999 and 2000 is the largest empirical study of shareholder litigation. We find that more than 80% of these cases are class actions against public companies challenging one type of director decision - whether or not to participate in a corporate acquisition. By contrast, derivative suits, the traditional shareholder litigation that is the staple of corporate law casebooks, make up only about 14% of all fiduciary duty suits. The acquisition-oriented class actions are a new, previously unstudied category of representative litigation, an area long dominated by studies of state derivative suits and federal securities fraud class actions. We find these suits do provide some management agency costs reductions, but these are concentrated in only one subset of the suits that are brought. Settlements leading to relief in an acquisition setting are not spread across all acquisitions complaints (including hostile, second bidder acquisitions etc.), but rather concentrated where there is a majority shareholder who is attempting to cash-out the minority interest held by public shareholders on terms that have been picked by the majority. On the opposite side of the equation - whether these suits possess high litigation agency costs - we find conflicting evidence. The acquisition oriented class action suits have many characteristics that have been identified in other contexts as indicators of agency costs (e.g., suits filed quickly, many suits per transaction). Yet, these litigation agency costs are below the level of perceived costs that spurred securities fraud legislation, for example. We suggest that Delaware could reduce the litigation agency costs associated with class actions without increasing management agency costs by instituting two procedural reforms. First, Delaware should enact a lead plaintiff provision, similar to that adopted for federal securities fraud class actions in PSLRA, to encourage larger investors to become more active monitors of fiduciary duty litigation. Second, we suggest that Delaware should put in limitations on professional plaintiffs as in PSLRA in order to reduce litigation agency costs further. Our article also examines derivative lawsuits from the two-year period, but we find that they do not look much like our acquisition cases (e.g., longer time to file and to settle, fewer suits per transaction and more motions). Derivative cases in our database are concentrated in areas where management agency costs seem likely to be high and produce a number of beneficial settlements that are concentrated in duty of loyalty contexts. Given these characteristics and the current balance between reducing management agency costs and increasing litigation agency costs in derivative litigation, we suggest that Delaware could loosen some of the restrictions that it has placed on shareholder plaintiffs in derivative cases.

When Should Government Regulate Lawyer-Client Relationships? The Campaign to Prevent Insurers from Managing Defense Costs

Since 1996, courts and state bar committes have issued an enormous number of opinions regulating insurance carriers' use of staff attorneys, fee audits, litigation management guidelines, and flat fees. On the whole, these opinions have sought to prevent insurers from innovating to reduce defense costs. The purported justification for extensive regulation has been the desire to protect vulnerable policyholders from exploitation. Unfortunately, regulators have no evidence that policyholders are in danger. An exhaustive search of the opinions and other sources provides no factual basis for believing that modern defense cost management techniques have harmed policyholders. The real motive behind the campaign is the desire to empower defense lawyers and to prevent further reductions in fees.

Electronic Media Discovery [EMD

ABSTRACT This bibliography provides a comprehensive list of materials on electronic media discovery (EMD). With email, Internet access, databases and other digital information storage entrenched in businesses and law firms, litigators and corporate counsel alike have realized the value and hazards of this digital goldmine. Many articles and treatises address EMD; however, research on EMD poses great difficulty. First, writers use many different terms for the process. Second, EMD is primarily a technical concept, not a legal one. Thus, EMD does not fall easily into standard legal index categories. To aid researchers, this bibliography includes articles on discoverability, evidentiary issues, data management, costs and sanctions, as well as citations to sample documents. The focus is on civil litigation and corporate data management.