1. law, govt and politics

MODL Quarterly Report
A Publication of the Missouri Organization of Defense Lawyers
Summer, 2013
2012-2013
MODL Board of Directors
MODL President’s Message
President
Robert J. Buckley s Columbia, MO
Vice President
Steven F. Coronado s Kansas City, MO
Secretary
John S. Farmer s St. Louis, MO
Treasurer
Scott E. Bellm s Springfield, MO
Board of Directors
Jennifer A. Baumann s St. Louis, MO
Kenneth W. Bean s St. Louis, MO
Jeffrey H. Blaylock s Columbia, MO
Jenny Brown s Kansas City, MO
Stephen M. Buckley s St. Louis, MO
Wm. Clayton (Clay) Crawford s KC, MO
Mariam W. Decker s Columbia, MO
S. Jay Dobbs s St. Louis, MO
Mimi Elizabeth Doherty s Kansas City, MO
David P. Ellington s St. Louis, MO
Dana Frese s Jefferson City, MO
Kurt Hentz s St. Louis, MO
Tiffany D. Hogan s Kansas City, MO
Timothy Lavin s Kansas City, MO
Louis (Lou) J. Leonatti s Mexico, MO
Emily Little s Columbia, MO
Michael D. Murphy s Cape Girardeau, MO
Donald O’Keefe s St. Louis, MO
Theresa Otto s Kansas City, MO
Elizabeth Raines s Kansas City, MO
Jason Scott s Kansas City, MO
Elizabeth H. Weber s Columbia, MO
Gary J. Willnauer s Kansas City, MO
Richard (Rick) Wuestling s St. Louis, MO
Tracy L. Zuckett s St. Louis, MO
DRI Representative
Gay L. Tedder s Kansas City, MO
Executive Director
Randy J. Scherr
101 East High St.- Ste. 200
P.O. Box 1072
Jefferson City, MO 65102
573-636-6100
FAX 573-636-9749
rjscherr@swllc.us.com
Robert J. Buckley, MODL President
Oliver Walker Wilson LLC s Columbia, MO
I recently attended DRI's Mid Region Meeting in Kansas
City hosted by the Kansas Association of Defense
Counsel. The attendees were representatives of civil
defense organizations within a six state region. The
primary focus of the meeting was to discuss and share
ways that we could improve our respective defense
organizations.
One of the common challenges expressed by those in attendance was how best
our defense organizations can communicate the "value" that membership provides.
As my term as MODL's 28th President comes to end, I cannot help but reflect back
on my 17 years with this great Organization to consider how, for me both personally
and professionally, to answer that question.
I was first introduced to MODL my second year of practice through attending the
MODL Trial Academy, then held at the Lodge of the Four Seasons at the Lake.
Taught by some of the best trial attorneys in this state, I learned more about trying
a lawsuit during those three days then I did during three years of law school. Not
only was it great instruction, but it allowed me time to interact and make
connections with fellow students and the faculty alike. I am a better trial attorney
for having attended MODL's Trial Academy.
Our Annual Meeting is another obvious benefit of membership. In what has
evolved into a terrific family weekend. The Annual Meeting offers first rate
continuing legal education as well as a perfect opportunity to meet and forge lasting
relationships with lawyers and judges and their families from every corner of this
State.
The great work of our the many MODL committees provides countless benefits to
our members. Currently MODL's Legislative Committee is working with our
professional lobbyist in supporting, opposing, and tracking various legislation that
greatly impacts our profession and the clients we represent. MODL's Amicus
Committee, which in the past two months has filed two amicus briefs in cases
“President’s Message” >p2
President’s Message
(from page 1)
before the Missouri Supreme Court,
provides a respected and persuasive
voice on legal issues that impacts our
clients and our practice — in addition
to providing a needed counterperspective to the plaintiffs’ bar.
But as I reflect on the countless
benefits that I have received through
my years as a MODL member, clearly
the most valuable for me has been the
many wonderful people I have been
fortunate to meet and work with, as
well as the many friendships that have
developed from those connections.
The relationships that have been
forged with so many in the
Organization have enriched me both
personally and professionally so much
more than I could have ever known.
So whether young lawyer or old,
I encourage you to get involved and
stay involved with MODL. Attend our
Annual Meeting. Join and become
active in one of the many committees.
Serve on the Board of Directors. Just
get involved! If you do, not only will the
Organization be better for it, but
I assure you that so will you.
It has been an honor to serve as the
President of MODL and pleasure to
have served with such great people.
There are far too many people to list
whom I need to thank for all of their
contributions. I look forward to seeing
all of you at our Annual Meeting and
my continued involvement with this
great Organization.
In-House Counsel Update
by Tim Lavin, Regional Managing Attorney,
American Family Mutual Insurance Company
You probably work with in-house
staff counsel at a number of
companies with offices located
around the state of Missouri, who
could benefit from joining MODL
and whose association with MODL
could benefit our organization. Our
interests are often aligned.
For example, as Dana Frese
pointed out in a recent issue of
the Quarterly Report, through
membership in MODL, corporate
counsel could be better informed
concerning our efforts to promote
qualified candidates for election as
members of the Appellate Judicial
Commission and county nonpartisan court plans. The MODL
Board of Directors actively attempts
to identify and support candidates
to these positions who will best
represent our interests. Yet,
without better turnout from the
defense and corporate bar, our
ability to prevail in these elections
is relatively ineffective. Past
election results indicate that
corporate counsel is an untapped
resource, whose involvement is
necessary for our candidates to
these positions to be successful.
We need corporate counsel in
Missouri to be engaged in the
process and cast their votes.
Whether they are directly involved
in representing defendants in law
suits or supervise that litigation, inhouse counsel could benefit from
the networking, camaraderie, and
information that we share at
luncheons around the state, at our
Annual Meetings, through the
Quarterly Report, and through our
newly organized List Serv. Likewise,
their participation in those things
can only help our organization
grown and strengthen as well.
So let me use this opportunity to,
once again, request that you
encourage corporate counsel with
whom you are acquainted to
consider becoming a MODL
member and explain some of the
benefits that MODL membership
can provide for them. Please refer
the names of prospective corporate
counsel members to me or to Dana
so that we can contact them
by letter, invite their application
for membership, and provide
more information concerning the
benefits of MODL.
Thank you for promoting MODL!
Tim Lavin
Regional Managing Attorney
American Family Mutual
Insurance Company
(816) 353-8250 ext. 59254
tlavin@amfam.com
MODL Quarterly Report
The MODL Quarterly Report is a publication of the Missouri Organization of Defense Lawyers.
If you have any comments or questions, please contact either of our editor:
Jennifer A. Baumann
Thompson Coburn LLP
Em: jbaumann@thompsoncoburn.com
~2~
From the Capitol
by Randy Scherr
MODL Executive Director; Jefferson City, MO
The First Regular Session of the 97th
General Assembly closed May 17th
after a number of high profile pieces of
legislation of interest to the civil
defense bar were considered.
After nearly five years, the Second
Injury Fund fix has passed. Senate Bill 1
contains many provisions but the basic
premise is to recapitalize the Second
Injury Fund by increasing the surcharge
and also reduce exposure for the state
by eliminating and reigning in the
ability of workers to make claims
against the fund.
The current balance in the Second
Injury Fund is approximately $9 million,
but the fund owes more than $32
million to injured workers. This has
caused Attorney General Chris Koster
to delay payments in pending cases.
the Governor. This year’s bill, House Bill
320, did not pass; however, on the last
day it was brought up with significant
additions that would also make sexual
orientation a protected class. With this
addition, it passed the Senate but did
not get brought up on the Senate floor.
Below is a list of bills that passed this
session with a brief synopsis of the
portions relevant to defense attorneys
and their clients.
• Increases court reporter fees.
SB 28
HB 339
• This bill revises the definition of
"misconduct" as it relates to
employee disqualification from
unemployment benefits.
HB 374
A major priority of the medical
community, insurers, and the civil
defense bar was a remedy to the
Supreme Court decision in the Watts
case. This ruling removed the caps on
non-economic damages in medical
malpractice cases. While this issue
passed the House and received
significant floor time in the Senate, it
ultimately was not brought to a vote.
• The Supreme Court must, by
January 1, 2015, recommend the
guidelines appropriate for use
by the General Assembly in
determining (1) the need for
additional judicial personnel or the
reallocation of existing personnel,
and (2) recommend appropriate
guidelines for the evaluation of
judicial performance including a
judicial weighted workload model
and a clerical weighted workload
model. When the Office of
the State Courts Administrator
indicates an annual weighted
workload model for three
consecutive years or more, which
shows the need for four or more
full-time judicial positions in any
judicial circuit having a population
of 100,000 or more, there must be
one additional associate circuit
judge position in the circuit for
every four full-time judicial
positions needed.
In previous years attempts to change
Missouri’s standard for Human Rights
cases have passed, but were vetoed by
• Beginning in 2020, and every 20
years thereafter, within the first 10
days of the regular legislative
With the legislation passed, it is hoped
that increased surcharge can move the
pending cases forward and make the
fund solvent for the future.
In addition, Senate Bill 1 makes it clear
that occupational diseases are
exclusively covered under workers’
compensation laws as well as
creating enhanced benefits for
workers who have certain occupation
diseases including asbestosis and
mesothelioma.
session, this bill requires the judicial
conference of the state of Missouri
to submit to both houses of
the General Assembly a circuit
realignment plan for the alteration
of the geographical boundaries and
territorial jurisdiction of the circuit
courts subject to the requirements
in Article V of the Missouri
Constitution.
~3~
• This bill prohibits (1) an uninsured
driver who is the owner of the
vehicle or (2) a driver operating a
vehicle with or without permission
and who is uninsured, from
collecting noneconomic damages in
a civil action against an insured
motorist alleged to be at fault for
an accident.
HB 650
• In an attempt to shield Doe Run, a
large lead smelter in southeast
Missouri, from lawsuits the
legislature passed a measure that
specifies that in all civil actions
involving claims arising from the
ownership
or
control
of
underground hard rock mining that
ceased operations prior to January
1, 1975, the person or entity must
be exempt from punitive or
exemplary damages to all claims
related in any way to the ownership
or control of the sites as long as the
person or entity has made or is
making a good faith effort to
remediate the sites. The Governor
has made strong indications that he
will veto this bill because of this
provision.
The Governor has until July 14th to
sign or veto legislation on his desk.
J
L
O
2013 John L. Oliver, Jr. Trial Academy
by Elizabeth Weber
Rogers, Ehrhardt, Weber, & Howard, L.L.C.; Columbia, MO
The John L. Oliver, Jr. MODL Trial Academy
was held the last week of March, 2013, at
the University of Missouri – Columbia
School of Law. This year twenty-two
students attended, along with another
exemplary faculty of experienced defense
lawyers. Students again focused on a
problem prepared by the National Institute
of Trial Advocacy alleging sexual
discrimination and a hostile work
environment at a law firm. The “plaintiff”
was a female associate in the firm, while
the “defendants” were the law firm and the
male partner who committed the alleged
acts.
The Academy continued the practice of
using jury selection experts from Litigation
Insights to recruit a jury panel from the
Boone County area for a live voir dire
demonstration. Eight venirepersons
participated in the voir dire, with
questioning presented by lawyers
representing both the plaintiff and the
defense. Throughout the three-day
Academy, selected faculty members
participated in demonstrations of other
components of a jury trial to all Academy
attendees.
Trial Academy students were broken into
groups that rotated among the faculty
members. Each student prepared an
opening statement, direct examination,
cross examination and closing argument for
presentation during the break-out sessions.
At the end of each session, faculty provided
feedback and answered questions about
each component of trial. Several faculty
members have commented that this year’s
class was particularly well prepared and
skilled in their presentations.
One new feature this year was the use of
law students as volunteer witnesses. The
students put a great deal of preparation
into learning their witness roles and were
then able to watch and learn during the
remainder of the presentations. Many
thanks to the Law School, the law student
witnesses, and to Darrell Jaeger for his
videotaping services. Thanks also go out to
Plaintiff lawyer Amy Gunn from St. Louis for
her second year of serving as faculty for the
Academy. Her insight from the other side of
the aisle was excellent and greatly
appreciated by all.
Judicial Luncheon Update
by Clay Crawford
Foland, Wickens, Eisfelder, Roper & Hofer P.C.; Kansas City, MO
Our Spring Judicial Luncheons were a big
success in 2013. The Kansas City luncheon
featured Hon. Marco Roldan, our newly
elected Presiding Judge for the 16th Judicial
Circuit. More than fifty members attended
the lunch and CLE presented by Judge
Roldan. We were pleased to be able to
provide our members with interesting and
entertaining continuing education credit
and a great lunch at the historic Kansas City
Club.
In St. Louis, former Chief Justice of
the Supreme Court of Missouri Ray Price
was the featured speaker. More than sixty
attendees received valuable insights and
CLE credit from one of Missouri’s
most respected and well-liked jurists.
~4~
Judge Price has joined member firm
Armstrong Teasdale to continue his
distinguished legal career.
Our semi-annual judicial luncheons afford
MODL members a great networking
opportunity, a nice meal and CLE credit at
a bargain price, all while benefiting from
the sage advice of Missouri’s leading state
and federal judges. Together, the Kansas
City and St. Louis luncheons generated
nearly $5,000 in revenue for MODL, while
providing a valuable service for our
members. We urge all of our member firms
to encourage their attorneys to attend our
luncheons around the state. Watch the
Quarterly Report and email alerts for more
details.
An Interview with Bernard C. Brinker
by Michael D. Murphy
Osburn, Hine, Yates & Murphy, LLC; Cape Girardeau, MO
Bernard C. Brinker received his law degree
from Washington University in St. Louis in
1955. In 1956, Mr. Brinker started a small
insurance defense firm in Clayton, Missouri
with two other lawyers. Today, Brinker &
Doyen, L.L.P. is a second generation defense
firm with over 20 lawyers. Despite its many
successes, the firm remains literally and
figuratively a family business. For most of
the firm’s partners, Brinker & Doyen, L.L.P.
is the only firm that they have been
associated with while in private practice.
Individually, Mr. Brinker has been AV rated
by Martindale-Hubbell for over 30 years. He
is a Fellow of the American College of Trial
Lawyers. And he is a former recipient of the
Lon O. Hocker Memorial Trial Lawyer
Award, which is Missouri’s most prestigious
trial lawyer award.
Mr. Brinker has engaged in all types of
litigation, tried hundreds of cases, and
settled countless more. Most recently, Mr.
Brinker has focused his practice on
mediation, having now mediated several
hundred cases.
Mr. Murphy:
Mr. Brinker, thank you for
taking the time to visit today. Let’s start out
by talking about your background prior to
law school — where did you grow up, and
what, if anything, about your upbringing do
you think helped lead to your ultimate
success as a trial lawyer?
Mr. Brinker:
I grew up in south St.
Louis. Before attending Washington
University, I worked in my parents’ grocery
store doing anything and everything that
needed to be done in the operation of a
family business. That experience, as
unrelated to law as it was, taught me the
importance of hard work, and the
importance of developing relationships
with others, i.e., customers, vendors,
employees, etc., that required me to be,
not only friendly, but convincing, effective,
and to a degree persuasive. This is not
unlike the relationships that an attorney
must develop with clients and jurors.
Mr. Murphy:
When did you know that
you wanted to become a lawyer?
~5~
Mr. Brinker:
I wanted to be a lawyer as
long as I can remember. My parents told me
I first said I wanted to be a lawyer when I
was in 4th grade, long before I knew what
a lawyer did. How I first got that idea, I have
no idea, but having that interest early, I was
always interested in learning and hearing
about lawyers. When my parents met with
an attorney, I went along. The more I
learned, the more intent I was to become a
lawyer.
Mr. Murphy:
Tell us about your early
years in the practice, and about the
formation of the firm that we know today
as Brinker & Doyen, L.L.P.
Mr. Brinker:
After law school, I first
practiced with a firm in the City of St. Louis.
I was given an assignment of what was an
unlikely case to win. That was a case
pending in the United States District Court
in Jefferson City, and was my first trial.
Either the jury liked me, or perhaps felt a
degree of sympathy in view of my obvious
inexperience, maybe both. Anyway, to
everyone’s surprise, I received a favorable
verdict. Shortly thereafter, the attorney I
had beaten, who was a well-known and
capable trial lawyer, recommended me to
a friend of his, Lee M. Carter, who was
moving his office to Clayton, Missouri, and
was looking for a young associate. I was
hired by Mr. Carter, and that began the
defense firm that eventually became
Brinker & Doyen.
Mr. Murphy:
Is there anything about
your upbringing or your education that, as
you look back, stands out particularly as
having prepared you for a career in the
courtroom?
Mr. Brinker:
In addition to the
comments that I made in response to your
first question, I was fortunate to have
attended Washington University Law
School. My freshman class had 74 students,
which at the time was considered a large
class. We graduated 33. The result was
small classes, close relationships with
faculty and fellow students, and an
excellent legal education.
“An Interview ...” >p5
An Interview ...
(from page 4)
Mr. Murphy:
I am interested in your
thoughts on how the practice of law has
changed through the years — will you walk
us through your career, and the changes
that you have seen?
“Be prepared.
Be honest in the
presentation.
And never
exaggerate.”
Mr. Brinker:
The law, particularly my
specialty civil trial practice, has seen
tremendous changes. There were four
circuit judges in St. Louis County when I
started my practice, although there were
soon six. Now there are 46. The subject
matter of litigation has become more
complex. It was primarily automobile
litigation and premises liability when I
started. Cases that usually could be tried in
1½ to 2 days.
Then came product liability cases. I believe
our firm tried one of the first product
liability cases that resulted in an appellate
court opinion. I practiced several years
before medical malpractice cases became
common. Today we see more cases, more
attorneys, and more judges, but fewer
trials. For the past few years, only 1% of civil
cases are tried to a conclusion. There is no
question that mediation is responsible for
some increase in settlements, but plaintiffs
and defendants alike seem inclined to
prefer settlement to trial.
Mr. Murphy:
This is a really broad
question — but it’s intended that way —
what in your experience are the keys to
being effective in the courtroom?
Mr. Brinker:
This is difficult to answer,
but I believe my actual experience has a lot
to do with my effectiveness. I often tried
several cases a week. Sometimes, I tried as
many as three cases in a week — one in civil
court and two in magistrate court, or vice
versa. I often tried more cases in one
month than lawyers try in one year today.
Mr. Murphy:
Do you have any thoughts,
in general, about the state-of-the-art in
terms of trial work today?
Mr. Brinker:
There are some excellent
trial lawyers today. The concern I have is for
the future. With fewer trials, there will be
fewer experienced trial lawyers.
Mr. Murphy:
You’ve obviously had a lot
of great moments at trial. What was the
~6~
worst moment you’ve experienced at trial?
Mr. Brinker: My worst experience was
when my client altered records, and denied
to me that he had altered them, and denied
the alteration in open court. Plaintiff’s
attorney had copies of the records before
and after they were altered. The case was
settled after a recess.
Mr. Murphy:
If a young lawyer came to
you today and asked you what you consider
the keys to success in the courtroom, what
would you say?
Mr. Brinker:
Be prepared. Be honest in
the presentation. And never exaggerate.
The rest is probably personality and there
is little that can be done to change that.
Mr. Murphy:
I always like to talk about
professionalism in our profession — how
has the practice of law changed, specifically
in terms of professionalism, through the
years?
Mr. Brinker:
Does
this
mean
professionalism in relation to the public,
clients, courts, and/or attorneys? Most
advertising is embarrassing to the
profession. I do think that lawyers are a
little more couth in dealing with each other
today than they were in prior years. That
probably is a result of the emphasis that the
Bar has placed on professional ethics.
Mr. Murphy:
In your experience, do
Rambo-type litigators get better results for
their clients? Why not?
Mr. Brinker:
No. Jurors are too savvy.
When I first began practicing, some of the
older and very successful attorneys would
scream and yell in the courtroom, and often
quoted the Bible. They would yell at the
jury, at the judge, and at each other. I
remember one occasion where two
particularly loud lawyers were trying a
lawsuit, and some of us went down to the
floor below in the old federal courthouse to
see if we could hear them. Sure enough, we
could. Today, I believe the jurors would
laugh at those tactics.
Mr. Murphy:
What’s the funniest thing
that’s ever happened to you in the
courtroom?
“An Interview ...” >p6
An Interview ... (from page 5)
Mr. Brinker:
On the first day of the
second week of a two-week trial, the
attorney questioning his expert witness had
a slip of the tongue, and said a word he did
not intend to say. The jurors, attorneys,
judge, and visitors all laughed heartily. The
lawyer did not know what he said, and
went back to the counsel table and asked
his secretary what he had said. When he
was told, he laughed and all present
laughed again. The atmosphere changed
dramatically.
“Lessons are
learned in every
case.”
It had been a very serious trial with serious
injuries, but thereafter no one, especially
the jury, was serious about anything.
Almost everything was laughable to the
jury. A slip of the tongue cost the attorney
and his client, who lost the case. After the
verdict, when the jurors were asked about
the case, they only wanted to discuss the
slip of the tongue. I use this as an example
in mediation when people tell me that they
know what is going to happen at trial.
Things always happen at trial that you are
not prepared for.
Mr. Murphy:
I heard a story once about
you using your son Jeff’s toy wagon to bring
an engine into a federal courtroom — tell
us about that.
Mr. Brinker:
This was a products
liability case. A helicopter crashed, and we
represented the manufacturer of the
helicopter. The claim was based on an
alleged error in construction of the
transmission. We had the transmission
constructed in the courtroom to show that
it was impossible to construct it the way the
plaintiff claimed. It would have been like
putting a square piece in a round hole.
What better way to haul in the parts than
in a toy wagon? Also, our witnesses re-built
the transmission on the wagon. I will always
remember that case. Among other things,
it was in federal court and it was the judge’s
first jury trial.
Mr. Murphy:
What case that
handled are you most proud of?
you
Mr. Brinker:
I never thought of a case,
trial, or settlement in terms of pride. Every
~7~
case, trial, or settlement was considered in
terms of better or worse than expected.
Lessons are learned in every case. This is
why actual trial experience is so important.
Ultimately, satisfaction is measured in
terms of whether the client is satisfied with
the result.
Mr. Murphy:
Tell us what you enjoy
doing outside the practice of law.
Mr. Brinker:
Playing with and being
with my five and eight year old
granddaughters. I am also studying and
relearning long division and negative
numbers, in order to keep up with them.
Also, I love to read. I enjoy doing research
on my ancestors. And I am currently taking
two courses, each two hours a week, at the
Lifelong Learning Institute at Washington
University.
Mr. Murphy:
If a young person came to
you today and told you that he or she
wanted to be a trial lawyer, and asked you
for recommendations on what they could
do to prepare themselves to be successful
in this profession, what advice would you
give them?
Mr. Brinker:
I would tell them that law
is a good profession, but at present it is
difficult to get experience as a trial lawyer.
I would suggest looking at other areas of
the law. In all candor, it is difficult for young
lawyers to get employment. It is even more
difficult to tell a prospective employer that
his or her goal is to be a “trial lawyer.” The
prospective employer probably already has
several young partners or associates trying
to get the experience needed to be an
accomplished trial lawyer.
Mr. Murphy:
Can you talk briefly about
why active participation in professional
organizations like the Missouri Organization
of Defense Lawyers is important?
Mr. Brinker:
It is important because of
the value of exchanging information about
law, courts, attorneys, etc., with fellow
defense lawyers. There is really no other
way to get such valuable information.
e