Discovery Matters - Setting The Tone For The Trucking Litigation Process

Discovery is one of the most important steps in the trucking litigation process. Discovery can set the tone for the litigation. For instance, responses to discovery may be used against a party at trial. We take the aggressive approach of serving discovery upon opposing parties as soon as the complaint and answer have been filed in an effort to lock the party into a set of facts before they really have a chance to develop their version of the case with the assistance of counsel. Methods of discovery include; depositions, interrogatories, request for production of documents, independent medical examinations, subpoenas and requests for admissions. All of these are important tools in determining the position and support for the opposing parties' claims/defenses in their case.

Discovery is broad. Parties are permitted to discover any matter, not privileged, which is relevant to the subject matter of the action. Generally, the courts allow discovery, however, discovery is not to be used as a fishing expedition. In fact, the information sought in discovery does not necessarily need to be admissible at trial, it simply needs to be reasonably calculated to lead to admissible evidence.

Documents and information may be protected from discovery if the information is privileged. The most common privileges applicable to the litigation of motor vehicle accidents are attorney client privilege and attorney work product. Attorney client privilege protects confidential communications between a client and his/her attorney. Work Product Privilege protects the mental impressions of a client's attorney, which may include the attorney's notes, opinions, research, memos and legal theories of the case. Neither of these privileges are absolute and the court may order disclosure despite the existence of either privilege.

In responding to discovery, a party cannot fail to disclose a document or information, simply because the document or information is not favorable to that party's case. Thus, when documenting an accident and keeping general records, it is important to be aware of the possibility that those documents and records will most likely be discoverable, which is one of the reasons we recommend not taking a driver's statement following an accident. The statement will be discoverable and may be used against the client later in litigation.

Also, keep in mind, that company emails concerning the accident are generally discoverable, unless they fall under a privilege. Therefore, the content of company emails regarding the accident should be limited to relevant information. Discovery is a truly important step in the trucking litigation process, it can set the tone for the litigation and is a key component in the aggressive defense of trucking lawsuits.

Marcello & Kivisto, LLC is solely focused on PA based transportation law and PA truck accident litigation and the specific needs of transportation clients. We are conveniently located in central PA and focus on helping trucking companies with a unique, aggressive defense of trucking lawsuit approach, and a proactive methodology to help ensure optimum results for our trucking clients. Please visit our website: http://www.cdl-law.com

You Paid What For That Patent? How Patent Counsel Hiring is Like the VP Wardrobe Buying Process

The recent hullabaloo regarding Sarah Palin's "gold plated" wardrobe from Saks and Neiman Marcus got me thinking about how many companies select patent law firms. This may seem like a non-sequitur, but bear with me...

Those responsible for dressing Gov. Palin apparently believed that the large expenditures at Saks and Neiman Marcus automatically translated into value for the Republican ticket by allowing her to be viewed as more "Vice Presidential" than she would otherwise been considered. Notwithstanding the high cost of her new wardrobe, as reported in the New York Times, her overall "look" remains the same as when she campaigned for and served as Governor of Alaska: business-appropriate jackets, feminine skirts and high heels. The response to this wardrobe makeover by a major fashion commentator: "Honey, I could have dressed you for a lot less than that." From this comment, as well as the continuing backlash about the cost, it appears that the expense of Gov. Palin's wardrobe does not directly correlate with the value provided to the McCain-Palin presidential ticket.

Not dissimilarly, when I review patent portfolios for clients for valuation and strategy analysis, I often think to myself "you paid WHAT for this patent?!" All too often, otherwise smart business professionals effectively engage in "magical thinking" by assuming that the act of throwing money at a high end patent firm will translate into creating business value. Of course, these same professionals would not believe that the mere act of spending of money will result in value creation in other areas of their business. So why do they do this in the patent realm?

I believe that the information costs associated with vetting and selecting patent legal services make it difficult for busy business professionals to make informed decisions in their company's patent matters. Without legal training or substantive business experience in patent matters, the vast majority of business managers likely do not believe themselves to be capable of directing strategic decisions about their company's patent portfolio. They therefore cannot rationally make the decision to identify a low cost, but otherwise excellent, patent law firm to work on their patent matters. For lack of any other means by which to select counsel, they assume that company value will be increased if they hire the patent law firm equivalent of Saks and Neiman Marcus, even when they could have obtained the same patent "look" by hiring a much less expensive law firm.

Fortunately, there is a solution to the patent law firm information cost problem. The emerging specialty of intellectual property ("IP") business strategists can provide business professionals with the information necessary to make educated and more cost appropriate selection of patent legal counsel. An IP business strategist can effectively operate as a business professional's "personal shopper" in selecting patent counsel and in assisting in managing patent legal expenses. In this role, the business IP strategist can obtain the right patent "look" for a company by knowing where to shop for legal services.

This is not to say that the business IP strategist would never select the Saks or Neiman Marcus equivalent of a patent law firm. Situations certainly exist where the cost of such a patent firm would be justified, such as in a so-called "bet the company" invention or litigation. However, as a "personal shopper" for patents, an IP business strategist can allow a business professional to make an informed decision about the appropriateness of such higher costs.

Moreover, the IP business strategist also understands the profit margins associated with patent law firms and, as such, will be better able to negotiate a discount with the law firm. That is, the patent "personal shopper" can help a business professional to obtain Saks and Neiman Marcus quality at a "sale price." And, who doesn't love to get a high quality product at a discount?

A "personal shopper" for patents will not necessarily result in reduction of a company's costs, however, I can virtually guarantee that the quality and overall value of the patent portfolio will increase. Also, it is highly likely that the cost savings enabled by a company's engagement of an IP business strategist will cover the cost of hiring this specialist. As more companies become aware that legal cost does not necessarily equate with patent value, the more IP business strategists will be seen as a useful way to improve the way one obtains patent legal services.

Jackie Hutter is Principal of The Hutter Group, a leading provider of IP ("Intellectual Property") business counseling and competitive analytics to forward-thinking organizations that seek to maximize firm asset value by capitallizing on the power of intellectual property. She has over 13 years experience counseling innovation-driven companies, universities and business development and investment professionals in maximizing their firm intellectual asset value. Jackie was named a SuperLawyer(R) in Intellectual Property in Georgia in 2004, and she has been a frequent speaker on IP issues to her fellow lawyers. Jackie was formerly Senior Patent Counsel at a Georgia-Pacific LLC, where she had sole responsible for Dixie(R) patent matters and, later, the company's Chemicals business. Prior to joining Georgia-Pacific, Jackie was a shareholder at the prestigious IP firm of Needle & Rosenberg, PC (now Ballard & Spahr), where she represented mulit-national companies, universities and innovators in protecting their IP to create maximum asset value. Jackie has also been a patent and IP litigator, which gives her a unique perspective in how to maximize firm IP value by avoiding litigation. Prior to attending law school on a full academic scholarship and where she graduated with honors, Jackie obtained her M.S. in Pharmaceutical Sciences and she spent several years as practicing chemist at Helene Curtis (now Unilever). She is a named inventor on one U.S. patent. Jackie lives in Decatur, Georgia, in a groovy mid-Century modern house with her husband, 2 daughters and several pets.