Editor: Without Fear or Favor, the Report of DRI's Judicial Task Force is designed to protect the independence of the judiciary. What are your reactions?
Willert: The right to a trial by fair and impartial juries and by fair and impartial judges must be preserved. The judicial system is significantly undermined where special interest groups make large political contributions to judicial candidates who have a very clear bias. It is imperative that people step back and start to think about what the purpose of the judiciary is: to seek the truth. That is true whether you are talking about a criminal justice system, which is not the focus of DRI, or the civil justice system, which is the focus of DRI.
Editor: Please tell us about your perspective on DRI's effort to improve judicial salaries.
Willert: Our law firm, Williams Kastner, supports the concept that in order to have good judges, we have to be willing to pay salaries that are sufficient to attract experienced, qualified people to the bench. Increasingly you find that people, particularly those in the private practice of law, are unwilling to make their commitment to the civil justice system by going to the bench because of the disparity between what many lawyers are paid if they remain in private practice and what they can make if they ascend to the bench to serve the greater good of the public.
Editor: Another issue in the DRI Task Force Report is getting better court facilities. What do you see as the greatest need?
Willert: As I travel around the country, I am struck by the unavailability of things like e-filing and the inability to get into the courtroom with a laptop so that research can be done online. Our firm has been very supportive of introducing more technology into the courtroom.
Editor: In your own experience in different courts in different states, do you feel that the DRI Task Force's efforts will lead to lower litigation costs and produce better outcomes for the corporations that you represent?
Willert: The recommended improvements will not only lower costs for litigants but also will result in better decision-making for all parties involved, including our corporate clients.
Editor: Have the lawyers in your firm benefited from the educational programs offered by DRI?
Willert: DRI has helped to improve the skills of lawyers in my law firm. I came to DRI many years ago as a young associate who was intent on getting the best education that I could as an employment lawyer. At the time, I looked for the best way to do this. I found that DRI had the reputation for offering the best seminars. I was pleased when I went to my first seminar and have been pleased ever since with the quality of presentations of DRI's educational programming. Whenever I have the opportunity to encourage a young lawyer or a senior, more seasoned lawyer to attend a seminar, I almost always say that the appropriate place to go is DRI.
Editor: Tell our readers about the National Foundation for Judicial Excellence ("NFJE")?
Willert: I would love to talk about something that is near and dear to my heart: the National Foundation for Judicial Excellence of which I currently serve as president. The NFJE was the brainchild of Richard Boyette, a former president of DRI. This organization is not widely known, but it should be. It is dedicated to the education of judges on what is best described as a fair and level playing field. In the three years that this organization has existed, it has presented programs to members of the appellate courts on topics ranging from spoliation of evidence to e-discovery, to concepts surrounding class actions and class action fairness. In presenting these programs, the NFJE has dedicated its efforts to presenting all sides that have any legitimacy - whether the plaintiffs' side or the defense side, or the academic viewpoint or the corporate vantage. The presentations to the judiciary have encouraged them to consider every aspect of the issue and to incorporate that information into their thinking so that there will be a level playing field for all constituents that use the judicial system. The NFJE has strong support, not only among the defense bar but also from those with differing views. Many of the judges who have attended these conferences have been effusive in their appreciation for the balanced presentations of the NFJE.
Our law firm is very supportive of NFJE activities and has enabled me to devote time to this organization.
Editor: Do you feel that law firms should go the extra mile for their clients by supporting the recommendations in the DRI Task Force Report and the efforts of organizations like NFJE and LCJ?
Willert: Yes, and I am proud to be a part of the support Williams Kastner has extended. Our law firm has traditionally been supportive of measures and associations that benefit not only us as lawyers but our clients, the judiciary and the public at large. We are very active in our local bar foundation. We have a very strong pro bono program. We are also active participants in various bar associations around the country. Our firm has a very large constituency in DRI. A member of our law firm is involved with Lawyers for Civil Justice and has dedicated considerable time to its efforts relating to e-discovery and class actions. Williams Kastner is a law firm that believes in the civil justice system - we demonstrate our support by the actions we take throughout our careers to bolster and safeguard civil justice.
Editor: LCJ has undertaken a major effort to protect the confidentiality of settlement agreements. Do you agree?
Willert: Several years ago, when I was serving as president of DRI, I fondly remember having a debate with the Chief Justice of the South Carolina Supreme Court about the confidentiality of settlement agreements. Some states have prohibited confidential settlement agreements on the theory that that kind of confidentiality is harmful to the public. I stated at that time, and continue to believe, that if you want to foster resolution of issues without clogging the courts, you have to seriously consider the ramifications of denying corporations the ability to obtain protective orders to preserve confidentiality when they enter into settlement agreements.
Editor: E-discovery remains high on the LCJ agenda. Is e-discovery a continuing concern of your clients?
Willert: E-discovery has taken corporate America - particularly small- and mid-sized corporations - by surprise. I commend LCJ for its work on the new federal rules. They are extremely helpful, but the real test will come when its provisions are interpreted by the courts. E-discovery can be incredibly expensive, and it raises a lot of questions with respect to who should bear the cost: when is it that you need to start to reconstruct and how much should you have to pay for that reconstruction? I spoke with a client recently who spoke of spending not thousands but millions in litigation because of e-discovery. In interpreting the new federal rules, the courts need to put more definite parameters on the burdens of e-discovery and LCJ needs to continue its efforts to bring state e-discovery rules into line with the federal rules, where that is needed.
Editor: DRI and LCJ are continuing to provide leadership in fighting junk science. Is it still a major problem?
Willert: I have been involved through DRI and LCJ in looking at the issues of junk science. We have a proliferation of law suits around the country which take longer and longer to get through the system and they cost more and more money. Part of the reason for that is the proliferation of junk science.
Editor: What about the attorney-client privilege? LCJ continues its involvement in this issue. What are your views on the selective waiver provision that is being proposed in Federal Rule 502?
Willert: I am not actively involved in any efforts surrounding the proposed changes to Rule 502, but I do believe that corporate America needs to have the ability to respond to government agencies and provide information in a manner such that they are not risking the waiver of the attorney-client privilege. The attorney-client privilege is a very important doctrine. There are people nipping at its heels, trying to erode that doctrine - because it is an avenue for forcing settlement. To the extent that the availability of the privilege is in doubt, corporations are put in a position where their personnel become hesitant to seek the advice they need either to clear the corporation's name or to do the right thing.
Editor: LCJ continues to be concerned about class actions and the potential for huge damages. What are your thoughts on this issue?
Willert: I believe that further class action reform is clearly in order. There are ethical questions that arise that need to be examined. When does someone who responds to an Internet questionnaire become the client of the plaintiff? Can I, as defense counsel, be prohibited from talking to those individuals simply because someone has filled out a questionnaire but the plaintiff's attorney has never spoken to them? Perhaps more importantly, there really needs to be a careful rethinking of class actions because the big recovery is going not to the people who may have been injured but to the lawyers.
Published November 1, 2007.