Editor: Congratulations on being named DRI’s president. Tell us about your practice. When did you become involved with DRI?
Sweeney: My practice focuses on defense of product liability and toxic tort claims, including especially class actions and mass tort consolidations. I first became involved in DRI when I went to an Asbestos Medicine Seminar in 1990 in New Orleans. Several years of attending that seminar convinced me that it was absolutely the best program on the topic, and I joined DRI. Eventually I became involved in other DRI committees and chaired, among others, the Industry-Wide Litigation Committee and the Toxic Tort and Environmental Law Committee. I went on from there to be a National Director on the DRI Board, and now, of course, I’m an officer.
Editor: Please update our readers on recent developments at DRI.
Sweeney: Last January, DRI convened the presidents and presidents-elect of all the defense bar associations, including from each of our three sister organizations: the Federation of Defense and Corporate Counsel (FDCC), the International Association of Defense Counsel (IADC) and the Association of Defense Trial Attorneys (ADTA), as well as from the dozens of state and local defense bar associations that are under the DRI umbrella. We had about a hundred people in a room and basically asked the question, “What keeps you up at night?”
We heard a lot of concern about structural changes in the legal marketplace. Attorneys in legal departments and at law firms are working longer before retirement and more outside lawyers seem to be competing for dwindling business. Law department budgets are being cut back. State and federal courts are facing budget shortfalls significant enough to close courtrooms and curtail trial schedules. Fewer cases are being tried.
At the same time, there remain significant concerns about fairness and ensuring a level playing field for the business clients that we defend in court, and about the process of selecting judges, including pressures in some jurisdictions brought on by judicial elections and, in other jurisdictions, resulting from the appointment process. Also of particular concern are developments in discovery that greatly increase litigation costs and impose an unfair burden on business defendants, as opposed to individual plaintiffs who typically don’t bear the same burden in responding to electronic discovery requests or managing discovery holds.
With all this in mind, we set about determining how DRI, as an organization, could help the defense community and our clients respond to these concerns. We engaged in strategic planning for a full year and are now prepared to move forward with implementing the plan. As DRI’s president, I see this as my primary goal for the coming year.
Editor: Please expand on the concept of a level playing field.
Sweeney: In the many cases involving individual plaintiffs and a corporate defendant, judges and juries tend to be more sympathetic towards the plaintiff. Based on a number of procedural and substantive developments around the country – of perennial concern to the defense bar – it appears that business is not getting a fair shake in court. For years, we have joined other defense bar organizations under an umbrella called Lawyers for Civil Justice and have worked primarily with the Federal Rules Committee to propose and promote reform of the federal rules where we believe they provide an unfair advantage to individual plaintiffs suing corporations.
Particularly concerning the cost of an overly broad e-discovery rule in the federal courts, which has been copied in many state court rules, businesses face a great disadvantage in having to interrupt normal document retention programs for years to accommodate litigation holds that involve vast of amounts of data, not just documents but electronic metadata. If they fail to meticulously preserve information, they are at risk for substantial sanctions for the supposed spoliation of evidence. In the past year alone, this issue has resulted in some major verdicts against corporations, and addressing that issue specifically is the subject of an ongoing task force in collaboration with our sister organizations.
Let me circle back and make a finer point about fairness. The world has changed during the past six years. The business environment is different as a result of the recession, and while the stock market has recovered, the jobs situation has not. Consumer spending remains low and has adversely affected our corporate clients virtually across the board. As a result, an increasing number of clients face the challenge of trying to do more with less when it comes to litigation. Disputes that companies once could afford to try to a fair result are often being compromised on terms that our clients would not have previously accepted. Put simply, they often can no longer afford to litigate, which is due in largest part to the cost of discovery, and particularly electronic discovery.
Editor: Please discuss the benefits of DRI membership in supporting the growth of its members’ practices.
Sweeney: We try to offer a variety of programs and services to our wide umbrella of 22,000 members. Certainly, on a demographic basis, our membership breaks down by age. Younger lawyers are looking to build skills and expertise through our CLE programs and fast track their professional development, either in-house or with law firms. In addition to cutting-edge CLE programs that keep them current, we offer mature practitioners leadership opportunities that enable them to raise their profiles and obtain credentials through presentations and publications, and opportunities for them to work with their peers as leaders in our many substantive law and standing committees. And we help senior managers of law firms and law departments in managing today’s very tricky business climate, again by offering courses and materials but also through opportunities to exchange best practices with defense peers around the country.
Editor: What are DRI’s main areas of collaboration with corporate counsel?
Sweeney: We’re proud to have more than 1,000 corporate members and consider them an important part of our organization. As the economic climate deteriorated six years ago, we worked with corporate members to provide benefits and incentives that made economic sense given newly constrained budgets, while still offering the benefits of DRI membership and attendance at our seminars.
We’ve been very pleased with the success of these efforts and the positive response from our in-house members. Our corporate counsel committee is stronger today than ever before, and a number of our programs are specifically focused around corporate members. For instance, we invite fifty or so senior in-house lawyers to our annual Corporate Counsel Roundtable, and at our Insurance Roundtable, a similar blue ribbon group in the insurance industry meets with other senior DRI members to talk about their greatest concerns and share solutions and ideas. We have set aside events at many of our seminars for corporate counsel to meet in private. We also offer corporate counsel significant additional incentives to meet with their outside panel counsel in conjunction with our seminars.
Editor: It sounds like a great environment for networking.
Sweeney: I like to say that DRI membership means job security, though perhaps, as in my case, not at the same firm throughout my career. As with the ACC, corporate membership in DRI provides an opportunity to build a network of peers and develop close relationships that only become more important in an increasingly fluid economic environment. I’ve known a number of members whose situations changed and who were able to use those relationships to move into new professional opportunities.
Editor: Our readers are generally aware of DRI’s work in the trenches producing amicus briefs (click here for additional information). Please talk about your own experience in authoring one of those briefs.
Sweeney: I’d be happy to do that. We produce more than a dozen amicus briefs a year. Most of them are focused in the U.S. Supreme Court, but a number are filed in the U.S. Court of Appeals and state supreme courts. We focus on a fairly wide variety of issues that are important to the defense bar. The case I was involved in was AEP v. Connecticut, which involved a petition to the U.S. Supreme Court from a Second Circuit ruling that affirmed a public nuisance lawsuit brought by a number of states and public interest groups, essentially against a number of power generating industries. The theory of the public nuisance action was that emissions were contributing to global warming, which harmed the states and the public in various ways. The Court agreed with our position that these issues were not appropriate for common law public nuisance actions under federal law, but rather were before, and appropriately would be heard and determined by, the EPA and rulemaking. These nuisance actions, which had popped up around the country against a variety of energy concerns, were forestalled completely by the Court’s holding that this is the subject of EPA rulemaking and not judicial determination.
Editor: How does this work tie in with DRI’s mission and the decision to take on a particular case?
Sweeney: We look for issues of fairness in the litigation process. As an example, we thought the AEP case involved a misuse of the litigation process by asking judges to make determinations that were more appropriately made by Congress and/or the administrative agency with jurisdiction, there the EPA. We argued that our business clients in the energy industry shouldn’t be facing one-off cases around the country in which a judge or jury might make a determination that could affect worldwide programs. In this instance, the Supreme Court agreed with us.
Editor: What is the typical process of drafting these briefs? Is it a collaborative effort?
Sweeney: The AEP brief process was typical. Our amicus committee of about eight appellate lawyers reviews all requests to participate and usually will designate a DRI member to lead in the production of the draft. The Appellate Committee tends to delegate significantly the substantive writing of amicus briefs, though it will review and discuss the drafts. Lawyers are selected on the basis of expertise in the field and tasked, for instance, with writing a brief in support of the petition. In the AEP case, the committee reached out to me as the then chair of the DRI Climate Change Litigation Task Force. I co-drafted the AEP brief with my partner, Sky Woodward, and Michael Nilan and Cynthia Arends of Nilan Johnson Lewis P.A. in Minneapolis. This process is largely successful in achieving the desired result, though there may be some last-minute tweaking.
Editor: I imagine this was an opportunity to increase visibility in your own practice.
Sweeney: Yes, indeed! DRI pays a modest fee for writing these briefs, which goes a long way toward mollifying one’s partners about the time involved, but this is largely a pro bono effort. The main benefits are in serving the defense bar and its clients, and it is certainly reward enough to be able to include a U.S. Supreme Court amicus brief on one’s resume.
Editor: What final thoughts do you have for our readers?
Sweeney: It is a great honor to be “The Voice of the Defense Bar.” DRI has been successful in becoming the third-largest bar association simply because it is the voice of a perspective that stands for fairness for the defense side in litigation. It always is more than a little amusing to me that plaintiffs’ lawyers cloak themselves in the word “justice.” Well, that’s fine. We’ll take fairness.
Our objective is to make sure that our clients are treated fairly by the courts, and to that end we will advocate, research, and write for our members and clients nationwide throughout the state and federal courts. That’s what we stand for, and that’s why DRI is going strong after more than fifty years.
Published November 13, 2014.
