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A few months ago, I took a deposition in Boston of an expert witness in a large insurance coverage case. Although it was winter, a trip to Boston is always enjoyable. The dep was held at a law firm that had a great view of Boston Harbor. We had expected a fairly sizable crowd, but as we waited for people to arrive, plaintiff’s counsel and I realized that nearly everyone else was apparently attending by phone.

As with every other element of modern technology, there are certain rules and courtesies that I propose as we venture in to this practice. Some are just common sense and easily recognizable. Some may not be. And some may just be the rantings of one who has been brought into this marvelous age kicking and screaming by his children and law partners.

So, as I overindulged on the coffee, soda and danish that was piled up on the side board and which obviously was meant to feed 15 and not 4, I began formulating these rules for phone attendees:

1. Get and circulate the call in number yourself. Don’t expect the people who made the effort to get on a plane, hail a cab, wait for an elevator did all that to make your life easier. Those people who plan to attend by phone should be the ones who obtain and circulate the call in number. Don’t expect the people who made the trip to get the phone set up. We are not the ones who need a conference phone in the room either.
2. Arrange to have the phone set up and in working order before 9:00 the day of the dep. Those of us in the room don’t have any need for the conference phone that may or may not be in the room. You do. Besides, chances are that the conference room phone will have a secret 20 or 30 digit number, that no one will know. There is also a good chance that when the dep is about to start, the only person we know at the firm at this point is the nice receptionist at the front door who knows neither the code nor how to use the conference phone. She will have to find an attorney in the office to help us out who will then have to call the IT person to get it working. This takes time and we’re that much closer to missing our plane home.
3. E-Mail the reporter your information. Once we have secured the necessary clearance to call in, the reporter will then request the appearances of those on the phone. In order to save time, it may be preferable to have the reporter give everyone her e-mail address and send her your necessary information. Most times the reporter will insist you give them the info over the phone anyway, along with whether you want a full transcript, mini, or CD of the dep. Keep it simple. We are the ones who have to fly Logan to Newark on a Friday night, while you’re already home.
4. Don’t start calling the firm to see what’s going on in the dep room. We’re going as fast we can getting you your fancy pants phones and whatnot. We’d appreciate a little patience while we do the heavy lifting.
5. Put your phone on mute. We don’t want to hear your keyboard, your Blackberry, your conversations, the NCAA basketball tournament on your computer (which we’d rather be watching, too, but we’re here working) or — for you “telecommuters” — your kids or dog.
6. DO NOT PUT US ON HOLD. It’s bad enough that we have to listen to Michael Bolton, Kenny G, or some other form of Lite FM, but when you don’t come back we can’t start with the music playing. At that point, we have to tell everyone to disconnect and call back in again. When you finally realize you are disconnected and have to call back in, we will hear that beep, ask who joined and then deduce who had the lousy hold music. Those of us in the room will then laugh quietly. Don’t embarrass yourself.
7. Don’t send emails with questions you want us to ask at the dep. If its that important, make the trip or ask the questions yourself.
8. If you do ask questions by phone, see above about catching planes. In all likelihood, the question you asked was already answered while you were out getting coffee in the firm lunch room, watching last night’s episode of “The Office” on your computer, or trying to get your dog back in the house.

One of the final legislative acts of 2006-2007 session was the passage of a Wrongful Death bill (S-176) that expanded the damages recoverable under the Wrongful Death statute from pecuniary losses only to damages arising out of mental anguish, emotional pain and suffering, loss of society and loss of consortium.

Because only pecuniary losses were available, the Wrongful Death statute was criticized for measuring an individual’s worth by his or her financial contributions to a family and, in practice, failing to assign a value to the lives of children, the elderly and those who worked within the home.  On the other hand, the Act eased the financial strain that an unexpected death could cause a family, and judicial interpretations of the statute allowed an estate to recover the monetary value of services provided, for example, by those who worked inside the home (such as accounting expenses if the deceased handled the bills or the prospective cost of maid and landscaping services if the deceased took care of the home) and those who provided valuable counseling services (such as psychiatric expenses if the deceased provided comparable services or expenses for a business advisor if the deceased had previously been relied upon to provide such advice).

Despite passing the Senate and Assembly, Governor Corzine vetoed the bill, expressing concern that unlimited damages based on emotional anguish or pain and suffering could have a significant impact on state and local budgets.  Indeed, it was reported that 544 wrongful death claims were asserted against departments and agencies of the State between 1996 and June 2007.

Governor Corzine further expressed concern that the bill might chill business development in the state, deterring businesses from coming to or staying in New Jersey.  In this regard, many opposed to the bill were especially concerned with the already exorbitant costs of liability insurance for obstetricians, who thus far had been practically insulated from wrongful death liability for deaths arising out of complications during pregnancies or childbirth. The Governor suggested the Legislature continue its efforts to reform the Wrongful Death statute to avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages.

The Governor suggested the Legislature provide for governmental immunity, more flexibility of the judiciary to reduce excessive non-pecuniary damages award, and defining “non-pecuniary damages” less expansively.

Before the Governor’s veto, the same bill was pre-introduced in the Legislature for the current 2008-2009 legislative session (which introduction would have been moot if the Governor signed the 2007-2008 bill into law).  Therefore, the 2008-2009 bill is currently in the same form as it was during the 2006-2007 session, and largely as it was since it was first introduced in September 27, 2004 by Senator Joseph V. Doria, Jr. of Hudson County.  No action has been taken yet to refine the bill, but such measures may occur from time to time during the upcoming session.

This blog will be updated as new activity on this topic occurs within the Legislature.

“Significant changes are brewing for New Jersey’s environmental site remediation program.“   

That’s the headline in advance of a joint hearing of the Senate Environment Committee and the Assembly Environment and Solid Waste Committee on April 15 to take testimony on proposed changes to NJ’s site remediation program and brownfields regulations.  Topics for discussion include:

• The use of licensed site professionals to review some remediations;
• Remedy selection/encouragement of permanent remedies;
• Engineering and institutional controls;
• Standards for the remediation/replacement of underground tanks;
• Site remediation enforcement issues;
• Issues concerning remediation funding, and,
• Change in use of contaminated sites.

Almost simultaneously, in an Adminstrative Order issued by NJDEP Commissioner Lisa P. Jackson, the DEP Permit Efficiency Review Task Force has been established.  The Task Force is charged with providing recommendations for restructuring and re-engineering NJDEP permitting and other programs.   The Task Force has a number of prominent private and public sector representatives, including its chairperson former NJDEP Commissioner Chris Daggett.  

Here’s a copy of Administrative Order 2008-06, which established the task force.

Does this mean that we will see significant changes in the environmental and brownfields regulatory process?  We shall see.  The mere fact, however, that both legislative committees are meeting together, and that the Commissioner has formed a Task Force consisting including private interest stakeholders, may be an indication that serious changes are in the works.

The meeting will be held at 10 a.m. in Committee Room 4 on the St Floor of the State House Annex.

http://www.njleg.state.nj.us/BillsForAgendaView.asp  

(For those that are interested, that’s the building to the right when you are facing the State House in Trenton.)
 
Stay tuned here for more developments…..

The National Vaccine Injury Compensation Program, or Vaccine Court as it is commonly called, was established as part of the National Childhood Vaccine Injury Act of 1986. The National Childhood Vaccine Injury Act was enacted to provide a prompt, efficient and fair system for compensation of those who suffer vaccine-related injuries and to reduce private tort litigation in state and federal court against vaccine manufacturers.

The Vaccine Court is a Federal “no-fault” system designed to compensate individuals thought to be injured by childhood vaccines.  A claimant must first pursue a claim in the Vaccine Court before suing a vaccine manufacturer for a vaccine-related injury or death.

There are a number of claims pending in the Vaccine Court asserting that one or more vaccinations caused the claimant to develop autism.  In July 2002, when there were over 400 such claims, the Vaccine Court established a procedure to handle the large number of autism claims filed and the large number expected to be filed in the future.

The Vaccine Court adopted a two phase procedure.  First, the Vaccine Court would inquire into the general causation issues involved in all of the autism cases - i.e., whether the vaccinations in question can cause autism and/or similar disorders, and if so, in what circumstances.  Second, the Vaccine Court would then apply the conclusions reached in the general causation phase, referred to as the “Omnibus Autism Proceeding,” to the individual autism cases.  Individual claimants were given the choice to either opt into the Omnibus Autism Proceeding, which would also then stay a case specific finding on their individual claim until after the Vaccine Court decides the general causation issue, or proceed with their individual claim.

The Omnibus Autism Proceeding is still in progress to determine the fate of the now 4,900 autism claims pending before the Vaccine Court and those that continue to be filed.

There are three separate theories being presented in the Omnibus Autism Proceeding:  (1) that the MMR (Measles, Mumps, Rebella) vaccine and vaccines containing an ethyl-mercury containing preservative, thimerosal, can combine to cause autism; (2) that thimerosal-containing vaccines alone can cause autism; and (3) that the MMR Vaccine alone can cause autism.   Three tests cases for each of these three theories have been selected to be tried before the Vaccine Court.

Between June and November 2007, the Vaccine Court heard the three test cases as to the first general causation theory.  The parties have filed post-hearing briefs as to these three test cases analyzing the evidence presented in those cases.  Additional briefing is due to be filed, after which the Vaccine Court is expected to issue written decisions.

Hearings on the three test cases selected for the second general causation theory, that thimerosal-containing vaccines alone can cause autism, are scheduled to be heard by the Vaccine Court in May 2008.

As a woman and a business owner, I noticed my business was missing out on opportunities it should be enjoying because we lacked the necessary certifications to be awarded work we were fully capable of providing.

However, applying for a State Certification as a Women’s Business Enterprise can be daunting. One mistake can mean waiting an entire year to try again and reapply.

So, when we decided to apply for NJ state certification, I made sure my colleagues and I were experts in the field and we learned the nuances of the certification process before we got started.

I am proud to say that our hard work paid off and we are now a Women’s Business Enterprise (WBE) firm certified by both the State of New Jersey and the Women’s Enterprise Network Council (WBENC). We are also certified as a Small Business Enterprise by the State of New Jersey.

Having gone through the regulatory juggernaut required to get certified, we first-hand experience with the substantive requirements, the processes and the procedures needed to emerge as a Certified Women-Owned Business.

We want to use our success in becoming a WBE for others’ gain.

Recently, we were able to do just that. A client had come to us with a problem. The State had denied their WBE Certification application on various basis, including their belief that the company was not truly managed by the minority shareholder and President.

In doing an analysis of their company and their application, we noticed shortcoming in the structuring of their organization. We were able to revise the company’s By Laws and Shareholder Agreement to make sure that they correctly reflected the management structure.

We worked with the company and their accountant to correctly value the company shares. We made other necessary changes to the corporate structure and the documentation to support it.

We make sure that your corporate structure and management meets the substantive requirements for the certification, and that your corporate documents correctly reflect your corporate structure. We’ve learned that spending a little more time on your paperwork before the certification process starts can work wonders towards achieving certification.

Before you run the risk of being denied, take steps to have your structure and documentation reviewed by someone who knows.

Were you ever afraid to speak in front of the class in high school or College? I can remember my senior capstone (thesis) in College. Part of my thesis was a written paper, while the other half was a presentation of my topic in front of invited guests, faculty, and fellow peers. Just the thought of it still makes my stomach queasy. Standing in front of a room of one hundred or more people is enough to give anyone that boost of adrenaline.

I was nervous and excited at the same time. As I watched my classmates approach the podium, I searched for signs of anxiety such as sweat, stuttering, or anxious movements. Most of them just read their speeches and decided not to face the crowd. Then I looked at the crowd, some were gazing into everlasting space, some were nodding off to sleep, some even had their eye pasted on the delicious fruit platter across the room. This crowd needed a jolt of excitement. But how can I make a historical topic about the 60’s movement a jolting experience? Suddenly, it was my turn.

I marched to the front determined and scared. I put my notes on the floor and opened with the following statement: “My topic is about Movements in the 60’s and by the looks of the crowd, I can see that most of you were living in that period.” There was a silence… and then all of a sudden a burst of laughter came from the entire crowd… I completed my speech off the top of my head and received rave reviews from the audience. Thanks to my offensive yet effective ICE BREAKER.

Fast-forward 10+ years, the New Jersey Young Professional Organization is having its annual Networking Party at a trendy lounge in New Brunswick. Having forgotten all about my lesson from the past, a co-worker and I decided to attend the event for networking purposes. When we arrived, there were hundreds of people with tags showing their name and occupation. Our next thought is: What do we do now?

We stood there and contemplated on ways to Break the Ice and introduce ourselves to groups of people who were already engaged in conversation. I could feel the anxiety start to draw as various questions came to mind: What’s the best way to approach groups? What if they are in the middle of deep conversations? What if I look or sound really awkward? etc… Suddenly, a young gentlemen strolled by and immediately my co-worker Jaclyn noticed his name tag which read: “Janet, Ms. Jackson if your nasty.” We immediately started talking to him without any worries because somehow this humorous approach made us more relaxed. Although awkward and hilarious, his name tag attracted us to him; it made us feel comfortable enough to put our guards down and approach him. What a brilliant idea, if you lack the ability to approach others, to think of a clever way to have others approach you.

Lesson learned for standing out in crowded situations: Make yourself known, stand out, be clever, be energetic, and most of all be Yourself. The worst that can happen is rejection, and guess what? You will survive, there will always be tomorrow. So when networking remember to put all your inhibitions aside, relax and project your best qualities, you’ll find the positive responses will outweigh the negative.

Remember sometimes humor serves as the perfect ice breaker that can give warmth to otherwise cold situations.

Not only am I a sysadmin, but I’m also a family man.  I’ve spoken of my love for the Exchange connector which syncs my Treo with my Outlook calendar; but that doesn’t help my wife who would like to know where I am too…

Enter Google Calendar.

Both my wife and I have Google acounts which allows us to share our calendars.  I can find out where she is and she can find out where I am.  It’s a nice complement to the calendar that’s stuck on the fridge when I’m not near the fridge.

However, it’s been a hassle double-entering my stuff.. once in Outlook and once in Google Calendar (or GCal for you hipsters).

Companion Link software, maker of many fine sync products, had an Outlook to GCal sync program, and I ponied up the $20 or $30 for it, and it worked for awile… but things got horribly out of synch and I ended up with like 7 copies of birthdays and other recurring appointments on my Outlook calendar, so I sidelined CompanionLink and basicially let GCal wither on the vine.

But no longer!  Google themselves came out with an Outlook / GCal sync tool, and so far, I like it a lot.  It’s a small app that sits in your tray and it snychs up your calendars on a given schedule.  (Default is every 120 minutes.)

Whaty’s also nice is it allows for one-way sync… so I push my Outlook calendar out to my GCal and my wife knows (within two hours) where I’ll be.

Handy!

There’s a new bit of malware out there going by the name “MonaRonaDona” and it basicially infects your PC, changes Internet Explorer’s title bar to announce itself and does a few other more or less benign things. It’s designed so that you Google the name and buy a piece of anti-malware for $40 which disables it.

The anti-malware program does, in fact, disable MonaRonaDona… and that’s all it does. Nothing else.

The good folks over at DSL Reports’ Security Forum have put together a sure-fre way to clean your system without shelling out the 40 bucks.

Get the details at this link:

MonaRonaDona removal

http://www.dslreports.com/forum/r20088377-

The oddest things so far is no one seems to know how you get infected in the first place… so remain vigilant, don’t open emails that you don’t recognize, and certainly don’t do that with attachments.

Save early, save often.

Supreme Court Re-Shifts Burdens of American Home Products, Then Refuses to Defer to First-Filed Action in a State Whose Insurance Law is Less Favorable In Awarding Coverage to Polluters

The Supreme Court delivered a one-two punch in last week’s decision in Sensient Colors, Inc. v. Allstate Ins. Co., et al., __ N.J. __ (2008), Docket No. A-99/100/101-06 (Jan. 29, 2008). First, it revamped the rules for determining the comity stay. Then, applying those rules, it held that a second-filed action should proceed in New Jersey, in part because the polluting policyholder might be less able to obtain insurance reimbursement for the cost of cleanup of its contaminated property in South Jersey if the action were adjudicated in New York under New York law.

Revising The American Home Products Test

In the battle of the forums (or fora if you remember your Latin), the long-standing general rule has been that courts defer to the first-filed action, unless a party can overcome the first-filed presumption and demonstrate the action should be adjudicated in the second-filed forum based on the particular circumstances of the case. For more than 10 years, American Home Products Corp. v. Adriatic Ins. Co., 286 N.J. Super. 24 (App. Div. 1995), has provided the guiding framework on the first-filed doctrine. In its first opportunity to review the American Home Products analysis, the New Jersey Supreme Court modified the Appellate Division’s paradigm.

American Home Products established a three-prong test to determine whether a court should defer to a first-filed action or retain jurisdiction over a subsequently filed suit. Under this test, a party moving for a comity stay or dismissal of a second-filed action in New Jersey has to establish that: (1) there is a first-filed action in other state; (2) both cases involve substantially the same parties, claims and legal issues; and (3) the plaintiff in the second-filed action will have the opportunity for adequate relief in the first-filed jurisdiction. American Home Products, 286 N.J. Super. at 37. Once these are established, the burden shifts to the other party who must demonstrate special equities for allowing the second-filed action to proceed. Id.

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One of the developers from Tumblr has come up with a new service: Instapaper.

The site basically acts as “to-read” list. As you surf the net, you click on a bookmark (which you conveniently place in your links bar) and that page gets added to your “to-read” list; something that’s interesting but you don’t have time to spend on it right now.

One of the great things about the Net is its breadth of information; and one of the worst things about the Net is its breadth of things. While reading one article, you stumble upon another link to something that is applicable not to the subject at hand, but something else you’re doing… but now’s not the time to go down that road. So you click on your Instapaper bookmarklet and know that you can go back to it easily.

There’s no registration necessary. You don’t even have to set up a password (tho you probably should).

The service is free, but as they point out in their FAQ: “Instapaper isn’t meant for permanent, long-term archival of everything you’ve ever wanted to read. And while best efforts are made, your data’s integrity is not 100% guaranteed here. This is for temporary storage of links you’d like to read.”

I’ve found the site to be incredibly handy and thought I’d do my part to spread the word.