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At the gym yesterday, I read an article in Forbes by Peter Huber which discusses how the system employed to record real property title, security interests, etc. is and should change due to technology.  I would also note that for reasons having nothing to do with digital data and electronic communications, title insurance isn’t used in many civilized countries outside the USA.

Mr. Huber’s article brought to mind a company Andrew Craig and I have been working with.  That company has a business that scrapes electronic and paper records to create alerts of threats to institutional and engineering environmental controls for historically-contaminated real property.

It works like this:  if you were to remedy historical contamination by placing a physical cap and recording a deed restriction, but then not be in a position to observe whatever may go on at the property thereafter (most likely you sell or close the factory and move away), as a subscriber to the tracking service you would receive an alert, by way of example, if reporting on the control goes out of compliance or someone applies for a permit that could interfere with it.   I think that one of Andrew’s clients or a responsible party predecessor at a remediated site is considering subscribing to the service for its site(s).  Mike and I are involved in a discussion with a similar company about how the information technology they have developed may have application to insurance claims.

What I think we are seeing is that these companies have cool products in search of drivers to make a market that is emerging.

Obviously, information technology is a game-changer for an information business like law.  Today’s consumer of legal services is increasingly unwilling to pay lawyers’ fees for service the consumer perceives to be at best “paperwork” and, at worst, clerical repackaging of data and analysis that already exists.  (Cisco’s general counsel, Mark Chandler, made a well-publicized speech addressing these themes.)   As Mr. Huber discusses, today’s technologies provide cost-effective means of performing that work and the law will adopt them.

Recent local news reports address actions being taken in response to lead contamination associated with artificial turf fields at New Jersey recreational facilities, including school playing fields. News items like these, and similar ones, like the less-recent Kiddie Kollege fiasco, which led to intensive NJDEP action regarding day-care centers, reemphasize the need to think about environmental risk before a problem arises.

The reports in the papers indicate that the measured lead levels may result from lead compounds used to color the nylon utilized in turf products distributed several years ago. At least for now, the turf itself would appear to be a source of the lead contamination, in whole or part. But it also seems reasonable to consider that one or more of these playing surfaces may sit on a field in an urban, highly-industrialized area of our state, essentially a brownfield, where increased lead levels may be historical in the soils and nearby structures. Obviously, step one is to investigate the situation and understand it so that all reasonable and necessary measures are taken.

But regardless of what the science ultimately shows, as in any situation like this, the recent findings will generate heat, and will have financial costs, at a minimum in the form of investigative work, and field surface replacement, since some fields are already being ripped out. At least three hot-button issues are in play here — protection of childrens’ health, environmental risk and urban – center quality of life. Where there are unexpected costs and issues like these, litigation is a distinct probability.

Typically, one of the first places we look when unexpected costs, especially cost associated with possible bodily injury arise, is liability insurance. To be sure, those who find themselves in the path of this issue have been calling their risk managers, brokers and lawyers, and policies are being pulled out and read. What they find there may or may not be reassuring. Today’s standard liability policy forms would contain exclusions, for example, barring coverage costs from damage to one’s own property or product without actual damage or injury to a third party, as well as a broad so-called absolute pollution exclusion barring coverage for liabilities arising from pollution. Of course, standard insurance policies, like any contract, can be negotiated at its inception to attempt to address the risk of the insured, and even if a risk cannot be transferred, the mere exercise of considering what risk is covered, and what is not, earlier rather than later, facilitates planning. There are commercial insurance products on the market for many years that directly underwrite so-called “pollution liability”. If a turf-war does break out, the degree of insurance protection available may depend on whether those with exposure today sought proper advisors, including lawyers and insurance brokerage personnel, to think about potential environmental exposures of their client and tried to identify and manage such risks when the coverage was procured.

Thanks to McCarter & English, Wilson Elser and Busch & Busch for hosting and all of the lawyers, judges and client-personnel who attended a ”cast party” for the Owens-Illinois case (O-I) at Stage Left in New Brunswick last Friday evening.  The party celebrated the 23 years since the filing of an important and hard-fought asbestos insurance and reinsurance case. 

The case is concluded, but its spirit lives.  If that spirit could be bottled, the entire Bar should be offered at least a sip.  (In fact, if you’re in New Brunswick this week, take a peek in the window of the restaurant.  There may still be some stragglers in there!) 

O-I was a rigorous a litigation work-out.  It involved a lot of money, novel and contentious issues, and a group of lawyers and judges with skill levels  approaching their egos.  Great fun. 

What all enjoyed Friday evening was the affection, respect and camaraderie resulting from having worked hard together on something special.  Former adversaries and allies, some of whom haven’t seen each other in years, ate, drank, joked and told fibs with the same vigor that we once litigated.    People flew in from around the country and joined the fun.  

Recently, I suggested in this space that lawyers getting together and partying might be as beneficial a pathway for New Jersey’s Mandatory CLE program as any alternative under consideration.  I now wish to formalize that suggestion for consideration by the Committee.  Without doubt, Friday’s event was among the most useful CLEs I have been to, right up there with having had the opportunity to do my job alongside this talented and personable group of lawyers, judges and clients.        

I was recently asked by the Chair of the Dispute Resolution Section of the New Jersey Bar Association section to comment on New Jersey’s Mandatory Continuing Legal Education program. Here goes….

From what I read, it seems a fait accompli that the Supreme Court of New Jersey will require more rigorous MCLE. In the absence of clear metrics defining the specific problems we are trying to address, what our goals in addressing them are, and how we might measure success and failure (and the cost of same), I suggest the Court refrain from significant changes. Let’s fix what’s broke, if anything, once we know what it is, and how we would know success if we were to achieve it. In my view, it would not reflect a failure on the part of the Committee if its recommendation, upon reflection, were to be to continue to study with a focused effort on the “what’s broke” question.

As a licensed attorney in this State for 22 years I have appreciated NJ’s decision to go a path different than many neighboring states as a breath of fresh air. It implied a grown-up trust in the Bar to do what’s required to deliver ethical high-quality service synonymous with New Jersey’s legal tradition. In the past, when consideration of more stringent CLE requirements has periodically come up, my experience, albeit anecdotal, was nearly universal that the lawyers I most respected for their energy, judgment, and ethical character felt that such requirements were, at best, unnecessary, and, at worst, ill-advised or absurd. I cannot think of an instance in which a practicing lawyer I respect greatly based on his or her work privately expressed enthusiasm for greater CLE requirements, and those people in general give freely of their time to legal reform and charitable causes.

I admit to being instinctively uncomfortable with schemes with obvious feel -good effect, but which, upon reflection, offer little in the way of measurements of results against which to perform a cost-benefit analysis and I tend to see this as one of those. I have never heard, for example, how the quality of lawyering anywhere has been shown to have demonstrably increased because of mandatory CLE. Do the malpractice carriers have statistically-sound data correlating claims with the rigor of their CLE programs? (more…)

20 years. A pretty damn good accomplishment with a lot of promise for the future.

Since opening the Firm, I married, moved twice, and became the proud father of 3 children, whom I enjoy the pleasure of raising with Martha.

I am thankful for and proud of what we’ve built at CB. While I hear too many lawyers lamenting their experience over the last 20 years or so, what I have had, as the cliche goes, is that I have gotten from it what I have put into it. I have had a chance to explore ideas, learn some craft, create businesses, and earn a living, all in the company daily of brilliant caring people. How good is that?

20 years ago, I had helped start CB, was learning how to litigate (in the fast-paced classroom of the Owens-Illinois case and others) and beginning to fantasize about the business opportunities at the intersection where real estate development meets the financial aspects of environmental remediation. Over the last decade, my partners trusted my judgments on how to turn aspirations toward a viable part of the Firm’s practice and my personal business career. I have seen Jeff Knapp, Andrew Craig, Darin Winick, my clients, and so many others, move forward on successful pathways I’d like to think I helped them chart. In sum, at a relatively young age in this profession, I have enjoyed incredible chances to both give and to receive.

I am energized as Year 21 year commences. I am certain Cuyler Burk is poised at another major jumping off point in its evolution. The market says we’re pretty good at offering clients top-tier quality work, and all of our people deserve to earn a good living, upon which I will insist. But the business plan cannot be to have clients pay for new associates, so they, in turn, can pay off student loans while performing rudimentary document reviews and repackaging old legal research assignments. The reality is that top-notch legal services are in many cases overpriced. Thus, firms like Cuyler Burk will capture increasing market share as corrective action is demanded by the sophisticated legal consumer.

I don’t know where my practice will take me in the next 20 years, but I will work to make it as exciting as the last 20 have been. As long as I am around, which I hope is a long long time, tapping the limits of the Firm’s creativity and courage to express it will be my goals and reasons I wake up every day excited about my career and this Firm..

Thanks to all.