AADC 2022 Year End Newsletter

COMMON

Defense The Arizona Association of Defense Counsel Newsletter

RECONNECT RE-ENGAGE

INDEX FALL 2022 NEWSLETTER PAGE 3 - A MESSAGE FROM THE PRESIDENT PAGE 5 - U OF A SELECTS TEAM FOR JENCKES CLOSING ARGUMENT COMPETITION PAGE 6 - CYBERSECURITY & DATA PRIVACY PAGE 7 - UPCOMING WEBINARS PAGE 8 - HOLIDAY RECEPTION PAGE 9 - YLD PRESIDENT MESSAGE PAGE 10 - AADC YLD UPDATES PAGE 11 - FOR THE DEFENSE PAGE 12 - SIDEBAR PAGE 13 - TUSCON HOLIDAY JUDICIAL RECEPTION PAGE 14 - FROM THE BENCH PAGE 15 - AADC 2022 ANNUAL MEETING & FALL KICKOFF RECEPTION

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COMMON DEFENSE | Fall 2022 | azadc.org

A Message From the President 2022-2023 Board of Directors

Re-engage & Re-commit.

That is the AADC Board of Directors’ theme for the upcoming year. To further that theme, we were thrilled to host our first in-person Annual Meeting and Fall Kickoff since 2019. The highlights of the AADC’s 2022 “Annual Meeting & Fall Kickoff Reception: Celebrating Differences” included unique panels addressing hiring and retention of lawyers, managing remote workers, strategies for developing a diverse workforce, marketing, and effective vs. aggressive client representation.

Micalann Pepe President

Brian Rubin Vice President Shanks Leonhardt Treasurer

Kara Klima Secretary

Jill Ormond Imm. Past President DRI State Representative Doreen Myles Executive Director

Board Members J.P. Harrington Bisceglia Amanda Breemes Parker Bunch Dan Coumides Todd Erb John Gregory Amanda Heitz Michael Hrnicek Jason Kasting Paul Kular

The breadth of knowledge, perspectives, and insights demonstrated by the highly-engaged audience also highlighted the benefit of getting our members together to bounce ideas off one another, gain insights into trends our clients are facing, and enjoy one another’s company. The Fall Kickoff Reception also honored the AADC’s five past female presidents, who were all trailblazers in their own right, and to whom the AADC will always be grateful: Kaye McCarthy (1994-1995), Beth Fitch (2000-2001), Holly Davies (2014-2015), Alison Christian (2019-2020), and Jill Ormond (2021-2022).

This year, the AADC encourages our members to also re-commit and re-engage to the defense bar and one another. To facilitate re-engagement, the AADC plans to host several roundtable meetings to foster discussion and collaboration on litigation trends, trial strategies, and expert issues (i.e., reasonableness of medical fees testimony). These meetings will be led by AADC members who are willing to share their experiences, strategies, and outcomes with their defense peers. Keep an eye out for our first meeting, which will focus on recent jury trials and include a discussion regarding the lack of peremptory strikes, the changing jury pool (after the influx of new residents from more liberal states), and more. Collaboration and cooperation in our organization have the potential to give our members exponential benefits, and we are dedicated to increasing both in the year ahead. If you are interested in leading a discussion or would like to pose a topic for a discussion, please reach out to me at mcp@jaburgwilk.com.

Tim McKercher Eadie Rudder David Schmidt Lisa Streu Patrick Tighe Zara Torosyan Victoria Torrilhon

2022-2023 YLD Board of Directors Nathan Gallinat President

Stephanie Baldwin Vice President

Kimberly Page Imm. Past President

Board Members Jim Carlson Steven Crocchi John Habib

In addition to the roundtable meetings, the AADC will continue to offer programming and events that we all look forward to each year, including: Phoenix and Tucson Judicial Receptions (December 2022); Young Lawyers’ Division Charity Softball Tournament (February 2023); YLD CLE offerings geared toward young lawyers developing litigation skills; CLE Webinars offered twice a month; Events and support for events highlighting diversity, equity, and inclusion initiatives; and Membership happy hours.

I look forward to meeting each of you at an upcoming in-person AADC event and am always available to discuss ways the AADC can increase its value to you, our members. Please join us at our upcoming 2022 Phoenix Holiday Judicial Reception on December 8, 2022, and the Tucson Holiday Judicial Reception on December 14, 2022.

Micalann C. Pepe AADC 2022-2023 President

We thank you for your continued support of the AADC, and I look forward to a wonderful year to come!

Julia Lauria Maria McKee Seraphim Sparrow

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IN MEMORIAM

Michael L. Gallagher 1944-2022

AADC President 1978-1979 Colleague, Friend, Icon, Leader, Philanthropist

U of A Selects Team for Jenckes Closing Argument Competition

The annual Joseph Jenckes Competition is a closing argument competition between students of the University of Arizona and Arizona State University law schools and has been held for over fifty years. It is sponsored by the American College of Trial Lawyers and the Arizona Association of Defense Counsel. Each law school selects two students for their team. This year, there were six finalists from the U of A including: 1st Place

Derek Kilgore

4th Place

Sarah Gerstel

2nd Place

Jade DuBoy

Tied for 5th

Andy Wallace

3rd Place

Max Larnerd

Zach Schimke

The teams received this year’s civil case file – McDonald v. Nanos -- on October 26 and have only two weeks to prepare their closing arguments. The arguments will be judged according to organization, content, style, and delivery, and without regard to which side has the better case under the law.

Derek Kilgore and Jade DuBoy will represent the U of A 2022 team. The third runner-up Max Larnerd will also be working to help the team prepare. The final competition this year will be held at ASU on November 10, beginning at 5:00 p.m. The public is welcome to attend.

Cybersecurity & Data Privacy Winter is Coming: 10 Steps Organizations Should be Taking Now to Meet Their Obligations Under Expansive, New Privacy Laws

By Laura Clark Fey, Esq. and Maddie Level, Esq. Fey LLC We have written this article to provide a guide designed to assist readers in understanding and meeting their obligations arising from these state comprehensive data privacy laws, including: The California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Privacy Act, and the Utah Consumer Privacy Act. These laws provide consumers with multiple privacy protections and rights concerning their personal information. The laws also impose a number of privacy and security obligations on organizations collecting or processing personal information.

Read the full article from DRI’s For The Defense at: https://bit.ly/3fxRysM. Laura Clark Fey, Chair of DRI’s Cybersecurity and Data Privacy Committee and one of the first twenty-seven U.S. attorneys recognized as Privacy Law Specialists through the IAPP, leads Fey LLC, a global data privacy and information governance law firm. Maddie Level is an associate at Fey LLC. She assists the firm’s clients in navigating a broad variety of global data privacy and information governance issues.

Five state comprehensive privacy laws will become fully effective in 2023. The first two, the California Consumer Privacy Rights Act, which significantly updates the current California Consumer Protection Act, and the Virginia Consumer Data Protection Act, will become fully effective on January 1, 2023. These comprehensive state privacy laws impose strict obligations on organizations that collect and use personal information of state residents’ personal information and impose significant penalties for violations. This makes it particularly important not to give compliance the cold shoulder this winter. For many entities, the patchwork quilt of U.S. data protection and privacy laws, soon to include multiple, comprehensive state privacy laws, creates a regulatory maze of obligations.

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Upcoming CLE Webinars (12pm-1pm): December 14, 2022: Post-Pandemic Jury Trials

January 11, 2023: Homeowner/HOA Liability

January 25, 2023: Cyber Risks for Attorneys

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(844) 427-6700 | www.advancedmgi.com

YLD President Message An exciting chapter is on the horizon for the YLD as we return to in-person meetings and social events. The YLD Board has many new members infusing a renewed enthusiasm. I am impressed with the collaborative spirit of our YLD members, and their proactive mindset. The early returns of YLD engagement are promising, and I am looking forward to serving alongside this group.

My primary emphasis this term is to help create an environment conducive to network building in which the YLD members have fun. It is easier to put in the necessary work for the YLD to be a contributory player to the aims of the AADC if people are having fun in the process. In-person connectively will be paramount to this end. Moreover, my other main goal this year is for the YLD Board to become better integrated into the main AADC Board.

To accomplish this end, we are stressing the importance of committee assignments and integration into the AADC’s various committees.

Our premier event this term is the softball tournament, which returns for the first time since the start of the pandemic. This event will benefit the non-profit Southwest Human Development, which is a wonderful local organization focused on early childhood development. We are anticipating a February tournament, are in the planning stages, and will be making a formal announcement soon. Moreover, the YLD’s CLE committee is in the process of planning a few CLEs geared toward attorneys in their first few years of practice.

I am looking forward to working with the YLD Board to make this a successful year, and I am excited for the year ahead.

Nathan M. Gallinat 2022-2023 YLD President

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The Young Lawyer’s Division is excited to announce its current board and their respective positions.

President: Nathan Gallinat Vice President: Stephanie Baldwin Secretary: Stephanie Baldwin Community Outreach Chair: Seraphim Sparrow

CLE Chairs: Mariah Logan, John Habib, and Julie Lauria Social Media/Newsletter Chair: Steven Crocchi Law School Liaison/Mentorship Program Chairs: Jim Carlson and Maria McKee Past President: Kimberly Page

The YLD is planning a number of events in the coming months. We are excited to host a holiday party in December (date TBD). In addition, we are working on CLE programs geared toward newer lawyers as well as our annual YLD Softball Tournament which is tentatively scheduled for February 2023. Keep an eye out for updates as details for these events are finalized. We look forward to seeing everyone soon!

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For the Defense CASE: EMORE V. DALY, MARICOPA COUNTY SUPERIOR COURT CV2019-007427 Brian Rubin and Kristen Briney of Thomas Rubin & Kelley PC received a full defense verdict following a three-week jury trial in front of the Honorable Bradley Astrowsky in August 2022. This was a wrongful death case arising out of the death of a motorcyclist. The surviving wrongful death statutory beneficiaries asked for $6 million in damages.

The jury came back with a unanimous defense verdict.

Jill Ormond and Steven Crocchi of Gordon Rees Scully Mansukhani, LLP won on a motion for summary judgment filed on behalf of a national hotelier. The Plaintiff was un-helmeted riding his scooter at 2:30am down a dark road when he hit a pothole and fell shortly after leaving the hotel property and suffered severe injuries. Plaintiff sued the hotel, arguing that the hotel had a duty to maintain the roadway and had a duty to warn of the pothole. The Court granted the hotel’s motion for summary judgment finding that the hotel owed no duty to Plaintiff for his off-property injury.

Ian Neale of Burch & Cracchiolo represented a school district. Two students got into a fight at lunch. One of the students picked up the other student and slammed him on the ground injuring the other student.

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The injured student sued the other student and the school district. Plaintiff alleged the school district was negligent for inadequate supervision. Plaintiff’s meds were approximately $50,000. Plaintiff made a significant pretrial demand. Before trial, the school district made a nominal offer. The jury ultimately found for the defense.

Jill Ormond and Steven Crocchi of Gordon Rees Scully Mansukhani, LLP obtained a favorable summary judgment ruling on behalf of a national hotelier. The Plaintiff was rear-ended on the golf course and sued the hotel under theories of negligence, common law and statutory dram shop liability, premises liability, and negligent entrustment arguing that the hotel overserved the tortfeasor who rear-ended him. The Court granted the hotel’s motion for summary judgment on statutory and common law dram shop liability, finding that there was no evidence that the hotel served alcohol to the tortfeasor or that the hotel knew the tortfeasor was intoxicated.

SIDEBAR By: James D. Smith, Esq. Osborn Maledon

Eadie Rudder invited me to pen some thoughts for Common Defense after I resigned from the superior court bench. The request was flattering because you soon learn when you’re no longer a judge that people don’t find your comments as insightful or entertaining. It also is easier to find topics as a judge—with about 550 cases on a standard civil docket, something always comes to mind. Understandably, I often write about evidence, procedural rules, and trial. Those topics interest me! So my first column in Common Defense will offer great advice about a thorny trial tactic, right? No. Why not? Remember that about 0.8% of civil cases go to trial in Maricopa County. The percentage in federal court is similar.

I don’t know of a jurisdiction in the United States that is much different. Yes, lawyers need all the tools—solid legal analysis and writing, written discovery, depositions, effective oral argument, rule mastery, and trial/appellate skills. But all those skills are part of the overarching reason your clients hire you: to solve problems. The types of problems vary with legal practices. An ERISA expert is solving different problems for her client than a medical malpractice defense trial lawyer is solving for his. Clients, however, typically want the lawyer to fix “it” or make “it” go away. Often, attaining that goal requires focusing on many things other than how you’ll try a case.

Some of being a problem solver means explaining to the client likely outcomes in realistic and blunt terms. You’re not fixing “it” if you express false bravado to the client. That reality carries through to settlement conferences and mediations.

You’re not using those properly if you think they’re just opportunities to be adversarial with your opponent. And you need to tell your client as much! Digging in intractably— whether in a mediation or elsewhere—typically doesn’t solve problems. I lost track of how many times lawyers told me, “Judge, I think this is just one of those cases that needs to go to trial,” when it absolutely didn’t and they settled on the eve of trial (after spending a lot more time and money Solving problems means finding solutions. Often, those solutions aren’t obviously related to the legal merits. When you have several insurers involved, it could mean creatively allocating a settlement among those carriers and helping separate lawyers or claims adjusters understand why that is the best solution. It might mean working with plaintiff’s counsel to find creative solutions for payment structures, the timing of payments, and such.

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In commercial disputes, solutions might hinge on business lines or relationships wholly separate from the litigation. Part of our job as lawyers is to show clients why these solutions make sense; that often requires looking well beyond the facts and law of this one case. Finding those solutions usually means truly knowing your client’s situation beyond this case, whether business or personal, too.

Yes, being a great advocate is a necessary part of being a lawyer. Nothing helps your opponent realize you’re serious than being prepared to take a case to trial. But don’t lose sight of why clients hire us—to solve their problems. That takes a broader view of the situation. And here is a great thing about being that problem solver: it builds client trust and relationships. Clients who trust you will hire you again, including for one of those rare cases that really does “need to go to trial.”

From The Bench Q&A WITH HON. RANDALL M. HOWE Arizona Court of Appeals, Division One

judges may have and sit down. No attorney has been penalized for not using all available argument time.

3. What is your biggest pet peeve in written motions?

Attorneys should not use demeaning or snarky language about opposing counsel and the arguments of the other side. It doesn’t make the argument more persuasive, and it wastes page space. Judges are annoyed by such ad hominem attacks. If an argument is unreasonable or outlandish, the judges will know. Show the argument is bad; don’t tell us how stupid the attorney is for making the argument.

4. If you were to recommend on book to a young lawyer (fiction or non-fiction) regarding the legal profession, which would it be?

Legal Argument: The Structure and Language of Effective Advocacy, by James Gardner and Christine Bartholomew.

The book does a great job in explaining how to organize and structure legal arguments.

1. In oral argument, what is one thing lawyers who appear in front of you should always do?

Answer questions directly and succinctly, even if the answer is unfavorable to your position. In oral arguments, judges are just trying to discern the right ruling and have specific questions they need answers to. Evading or ignoring questions annoys the judges and makes them question your credibility and competence. If an answer is necessarily unfavorable to your position, judges will always give you an opportunity to explain why the unfavorable fact or legal proposition doesn’t hurt your position in the end.

2. Is there anything lawyers should avoid during oral arguments?

Attorneys often evade or ignore questions. Also, attorneys often don’t know when to stop talking and sit down. If you get the sense that the judges are favorably disposed toward your position, answer any questions the

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5. Who is your favorite Supreme Court Justice and why?

Antonin Scalia. He was a great legal analyst and writer.

He also understood that judges should stick to the text of statutes or the constitution and keep their personal opinions away from deciding the proper outcome of a case.

AADC 2022 Annual Meeting & Fall Kickoff Reception: Celebrating Differences The AADC held its first in-person Annual Meeting and Fall Kickoff Reception since 2019 on September 22, 2022 at ASU Law School in downtown Phoenix.

With a theme of “Celebrating Differences,” the Annual Meeting program focused on diversity, challenges facing the legal profession, and aggressiveness vs. effectiveness in litigation.

Among the many distinguished speakers was Frank Ramos, Jr., a practicing lawyer and author who focuses on mentoring lawyers, business development, and law firm leadership skills. Macie Lepine, Ph.D., an Associate Professor from ASU’s W.P. Carey School of Business, Brian Rubin, Esq., and Kenny Ho, Esq. discussed the

AADC Annual Meeting Sponsors & Board Members

Navigating our Practice and Firms in a PostPandemic World Panel

Workplace Diversity Panel

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challenges of practicing law in today’s postpandemic employment world, attracting and retaining talent, and building new practice areas. The Workplace Diversity panel was moderated by Tim Overton, Esq. and featured speakers Kami Hoskins, Esq., Gus Miranda and Greg Gautam, Esq. The final panel focused on civility and professionalism in litigation and featured Hon. Cynthia Bailey, Hon. Sara Agne, James Smith, Esq., Nancy Giles, Esq., and Rina Rai, Esq. Attendees earned over 4 hours of ethics CLE credit. The 2022 Fall Kickoff Reception was held immediately following the Annual Meeting. AADC honored our five female past presidents during the reception including Kaye McCarthy, Beth Fitch, Holly Davies, Alison Christian and Jill Ormond.

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AADC Newsletter Committee: Eadie Rudder (Carpenter, Hazlewood, Delgado & Bolen), Brian Rubin (Thomas, Rubin & Kelley), Steven Crocchi (Gordon Rees), Katharyn Myers (Christian, Dichter, Sluga) and Doreen Myles (AADC Executive Director)