Top 5 Things Learned at the 2022 DRI Annual Conference

DRI (Defense Research Institute) recently held its annual conference in an energetic Philadelphia, concluding hours before the Phillies’ stunning comeback win in Game 1 of the World Series on Friday, October 28. The conference included a New York Times best-selling author, and former law clerk to Justice Sandra Day O’Connor, and various leaders in the legal industry of “Lawyers Representing Business.” Here were some of the most notable things I learned at the conference:

1.    Minnesota jurors’ feelings about COVID
precautions were “very predictive” of their feelings about evidence in the
murder trial of Derek Chauvin. This is according to attorney Steven
Schleicher – one of the prosecuting attorneys in Chauvin’s 2021 trial, and Dr.
Christina Marinakis – a jury consultant who assisted prosecutors during jury
selection. In “The Art of Jury Selection: A Murder Trial Revisited,” Schleicher
and Dr. Marinakis discussed lessons they learned from their experience in the
Chauvin trial, wherein Dr. Marinakis briefly mentioned the correlation between
how jurors felt about COVID precautions and their attitude toward the case. Mr.
Schleicher also provided his perspectives on rehabilitating equivocating jurors
who make non-committal statements about their ability to determine a case
fairly, using discussions from voir dire in your closing statement to connect
with jurors from those discussions, and having the client stay out of the
courtroom during voir dire (if the jurisdiction or court allows) as it may
encourage the jury panel to be more open in sharing their negative viewpoints
about your client.

2.    A 1946 case involving orange groves provides a
primary test for how the SEC determines whether a crypto is a security that
requires regulation. The panelists for “Cryptocurrency: It’s Here.
What You Now Need to Know,” discussed key cryptocurrency topics, including how
the U.S. government, in comparison to European agencies, is failing to keep up
with the developers who are creating these new instruments of value. Attorney
and panelist Eric Hess noted the test used by the SEC to determine whether a
crypto is a security that needs regulation is a test from 1946 involving orange
groves: SEC v. W.J. Howey Co., 328 U.S. 293 (1946). The Howey
test could be applied to any tradeable asset, and if it is traded in connection
with money in a common enterprise with expectations of a profit to be derived
from the effort of others, the asset, including a cryptocurrency, would be
subject to SEC regulation.  Other ideas discussed included use of burn
tokens to send to a non-existent “dead wallet” receiver, and regulatory
agencies looking into sanctioning code or software to deter “mixing” or
“tumbling,” where normally identifiable crypto is sent anonymously to someone else.
Developers view the agencies’ targeting of third-party code as misdirected and
an attack on their free speech.

3.    Everyone’s obsessed with ESG. During
the panel, “Your Clients Are Focused on ESG and So Should You,” in-house
counsel discussed the overwhelming interest industries are having in developing
and promoting environmental, social, governance (ESG) programs. These programs
are wide-ranging, but generally deal with a company’s impact toward
environmentally sustainable and responsible conduct in the marketplace. Audit
firms are all over it, banks are asking about it and M&A contracts are
including these programs in necessary documentation. Law firms might be asked
about their ESG program by prospective clients.

4.    The Supreme Court is set to hear the legitimacy
of a state statute that requires corporations to consent to general personal
jurisdiction as a condition of doing business in the state. The
2021–2022 Supreme Court term was historic and controversial, and presenting
Attorney Tom Dupree estimated that this term, with cases dealing with
affirmative action programs in higher education, religious freedoms for website
designers, and voting issues, was likely to have a similar feel. One
interesting case that will not get the front-page headlines is Mallory v
Norfolk Southern Railway, which deals with a Pennsylvania statue that
requires any out of state corporation seeking to do business in the state to
consent to general personal jurisdiction as a condition to the ability to
register in the state. This case is seemingly a direct challenge to Daimler
v Bauman, 571 U.S. 117 (2014), which held that a company could not be sued
in a U.S. state for injuries that were caused by the company’s foreign
subsidiary if the actions leading to the injury took place entirely outside of
the United States. The general personal jurisdiction statute allows for greater
forum shopping. For example, a California person injured by the railroad in
Montana could sue that railroad in Pennsylvania if the injured party felt that
Pennsylvania was a more favorable jurisdiction for his or her claim.

5.    Civil legal services in the U.S. are
comparatively unaffordable and inaccessible to other countries. According
to a new report from the World Justice Project, the U.S. ranks 126^th
out of 133 countries in terms of citizens’ abilities to afford and access civil
legal services. This ranking was discussed by panelists as part of the purported
reason for the increase of non-lawyers providing legal services and owning law
firms. This can come in a variety of methods. For example, those with paralegal
degrees or backgrounds could be allowed in jurisdictions to represent tenants
in eviction cases, as the Oregon State Bar Association considered in 2021. In
the ownership realm, non-lawyer investors in some states can operate businesses
that provide legal or law-related services, such as LegalZoom software or an
accounting firm legal employees providing estate planning advice.

However, one of the panelists, a leading plaintiffs’ attorney, stated he is seeing no lack of accessibility in cases in which the fee is based on a contingency award. Furthermore, in other countries that have led this movement (e.g., England and Wales), the access to justice has not significantly improved. The panel highlighted the negatives that can exist within the context of greater non-lawyer involvement and how it often does not promote the client’s best interest. For instance, one panelist pointed to an example in England of an insurance company that has bought and taken over plaintiffs’ firms. In the United States, lawyers have not sold out and most states that have examined this issue have come away not wanting to themselves of the legal standards like professional independence and promotion of the administration of justice over potentially competing interests such as maximizing shareholder profit. While increasing affordability and access should be a prominent concern for states, the panelists suggested increasing legal aid funding or alternative measures should be the methods to achieving such goals. For further information on this trend, the panel concluded by urging the audience to review a white paper, “Nonlawyer Investment in the Legal Economy” authored by DRI members, available at https://www.dri.org/docs/default-source/dri-white-papers-and-reports/abs-white-paper-final.pdf?sfvrsn=4.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

CONTACT SENIOR ASSOCIATE LUKE C. JENSON

Luke C. Jenson
Regency West Office Park, Building 8
4350 Westown Pkwy, Suite 120
West Des Moines, Iowa 50266
P: (515) 453-8509 / F: (515) 267-1408
E: luke.jenson@mwhlawgroup.com