1. Newsletter
Published Quarterly By The Defense Trial Counsel of West Virginia Spring 2015
President’s Column
By Charles F. Printz, Jr.
Highlights
PASSING THE BATON
As this column is read, my term as president of DTCWV will
end, the annual meeting soon will be history, and Jeff Holmstrand
will begin his work as your new president. In these circumstances,
it is tempting to review the accomplishments and challenges of the
previous thirteen months, and I will comment on two. However, much
of what your Board of Governors (BOG) accomplished is a product
of the work of our immediate past presidents - Laurie Barbe, Mike
Cimino, and Gerry Stowers, and their respective boards, so the current
momentum of this organization is largely owed to them.
With that said, DTCWV’s primary challenges are recruiting and
retaining members, a perennial concern, and becoming politically
relevant in a dramatically changing legislative environment.
In the spring-summer of 2014, we experienced a drop in overall membership, and participation
by young lawyers slowed. The board considered a report from an ad hoc marketing committee
and took measured steps: we contacted the CEOs of some defense firms to rebuild membership.
The Young Lawyers Committee was invigorated with a new leadership team, and we revitalized
events for law students, summer law clerks, and young lawyers. Our newsletter has a new format,
focus, and content, and we are using LinkedIn to broaden our reach to members. We also revised
our senior attorney membership qualifications. All of this has had an impact, and there have been
gains and recoveries in membership across the board in all age groups, but the struggle will always
be to redefine and sell the value of DTCWV to prospective and current members and to keep them
involved. Jeff and the BOG must sustain these approaches and develop new ideas to address this
challenge.
We entered the recent legislative session with a belief in our preparations but found that in the
resulting maelstrom, we were often reactive and not as proactive as we intended. However, we
learned a lot. In the end, DTCWV had a selectively measured and focused impact and should be
better prepared for what may be “the new normal” over the next several sessions, i.e., tort and other
types of reform in spades. In the process, we reaffirmed the value of an experienced and properly
compensated lobbyist. Danielle Swann kept the BOG and the ad hoc group monitoring legislation
fully informed, and she was proactive in encouraging and managing our selective participation
in the process. This of course involved a time commitment by DTCWV leadership in reviewing
bills and amendments, in daily communications with Danielle, and in regular contact with our ad
hoc committee and the BOG. We ultimately gathered a consensus and
made our position known on seven reform bills, which we believed
Why Join?
DRI Update
MPLA in 2015
Legislative Update
Interviews:
Hon. Jennifer F. Bailey
Senator William P. Cole, III
Senator Charles Trump
House Judiciary Chair
John Shott
Practical Implications
- House Bill 2002 &
Senate Bill 421
Loss Prevention Tips
HIPPA
WV Consumer
Protection Changes
Don't..
Sub Chair Reports
Tech Tip
www.dtcwv.orgcontinued on page 2

2. 2
DRI Update
By Laurie C. Barbe, DRI WV State Representative
Steptoe & Johnson PLLC, Morgantown, WV
President's Column continued
Peggy Schultz, Chazz Printz, Jill McIntyre, Jill Rice, and I recently returned from the DRI Central
Region meeting hosted by West Virginia at The Greenbrier. We were joined at our meeting by representatives
from the two other states in our region, Ohio and Michigan, along with representatives from North Dakota,
South Dakota, Indiana, Minnesota, Kentucky, and Wisconsin (who couldn’t resist joining us once they heard
about the venue). These yearly regional meetings present SLDO officers and DRI state representatives
with the chance to brainstorm on a more local level and share information and ideas about successes and
challenges facing each SLDO. This is just another way in which DRI “Makes it Personal” and assures
that we maintain the tools and resources needed to keep our state organizations relevant, productive, and
meaningful to our valuable members. This includes adapting to changing generational needs (both old
and young) and providing value to everyone that includes meaningful CLE content, speaking, writing,
and sponsorship opportunities that shine the spotlight not only on individual members but on law firms,
and assuring that the judiciary, legislature, and public at large understand our mission. The possibilities
are endless, and DRI is here to help us achieve our goals and get the best bang for our membership bucks.
You should know that DTCWV is one of the most highly regarded and successful SLDOs in the country, and we owe that
reputation to our dedicated Board, our active members, and, of course, our fearless leader, Peggy, who keeps us focused and hopping!
In order to continue making sure that DTCWV
stays connected, engaged, and active within DRI,
I encourage you to maintain active memberships
in both organizations. I promise you that your
client and attorney connections at both the state and
national levels will benefit from your memberships.
I want to leave you with some information
about a new DRI Initiative called The Informed
Voters Project. Check out the short video clip called
“Fair and Free – Full Film - featuring Sandra Day
O’Connor” by going to http://ivp.nawj.org.
Have a great summer everyone.
benefited the defense bar, by making verbal and written comment, giving testimony, providing position statements, and gaining
publication of an op ed article in The State Journal. DTCWV was heard from on these reform measures: SB 6 - Medical
Professional Act; HB 2011-Deliberate Intent; HB 2002 - Several Liability, Comparative Fault; HB 2795 - Medical Records; SB
12 - Wage Payment Collection Act; SB 13 - Open and Obvious Danger; and HB 2010 - Non-Partisan Judicial Elections. It should
also be noted that there were at least a dozen DTCWV members who were actively involved in drafting, lobbying, negotiating,
and other heavy lifting that was needed to see the passage of these reform measures.
Just recently, the BOG formed an intermediate court focus group to coordinate with our lobbyist and legislative committees
for the interim sessions. We will be better prepared for the 2016 session. With plenty of foresight and a more efficient system,
DTCWV will continue to serve its members and the defense bar well in this arena as we develop a larger profile. However,
DTCWV’s leadership must be proactive and prepared to keep abreast of legislative developments and, when and where needed
strategically, provide position statements, comment, and testimony before legislative committees and subcommittees, sometimes
on short notice. Thank you for your support during the past year. I look forward to serving you as one of our back benchers as a
past president.

3. 3
I joined when I was a young litigator and DTCWV was a young organization. Senior and not so
senior lawyers in our firms started the organization. We were all expected to join and we joined.
DTC was particularly important for me. I grew up in Maryland, went to school at Dayton and never
stepped foot in West Virginia until the summer of 1982 when I clerked for then Jackson Kelly Holt &
O’Farrell. (Well, actually, I had been to Harpers’ Ferry on a train ride with my Uncle Jack and all the
Crowley cousins.) I moved permanently to West Virginia in 1983 because I got a job with JK. Other than
folks I met as a summer clerk, I barely knew anyone outside of the firm. Thirty or so years later, I can
honestly say that joining DTCWV was a significant factor in my personal and professional development.
Today, membership in defense and other bar related groups is on the decline. I’m not sure why, but
I think it is a combination of things. Firms no longer automatically support or encourage young lawyers
to join DTCWV. As firms deal with a tough legal market, membership dues are one area that’s easy to
cut. Lawyers who did not join DTCWV sometimes don’t see the “value.” There is also an increasing
emphasis on business development, even to the youngest lawyers, and a corresponding need to show
results. I’ve heard multiple marketing experts suggest that other lawyers are not a source of business. Last, we’re told that millenials
are not “joiners” unless there is a demonstrated value. I disagree with most of this, so here is my pitch for encouraging young defense
lawyers in our firms to join DTCWV.
Do you want to build a network? Remember that I didn’t know a soul in West Virginia. DTCWV provided me a platform and
opportunity to meet and become friends with lawyers across the state; without DTCWV, I may not have done so. I count as friends a
network of lawyers who I met through DTCWV, whether while serving on the Board, rounding up speakers, sending emails or, perhaps
having a cold one or two in hospitality suites over the years. This means I have friends I trust to call about judges in their counties or to
refer a client where I have a conflict or can’t do it. Perhaps most of all, I know lawyers whose word I can trust when we are litigating
cases together. DTCWV involvement is also a stepping stone to other national defense groups. Just ask Marc Williams, a past DRI
President or Steve Crislip, a past President of the Association of Defense Trial Attorneys.
Do you want to be a better lawyer? Over the years, the CLE offerings from the DTC have been outstanding, with national speakers
and some pretty phenomenal members as speakers. Our Young Lawyer “boot camp” offerings are second to none and provide training
from some of the state’s best defense lawyers. Our offerings are very reasonably priced.
Do you want to build your professional reputation? Then join a committee. Show some hustle and you will have the opportunity to
chair a committee, join the Board or become an Officer. Want to speak or write? DTCWV has opportunities galore in our newsletters,
CLE offerings, and Young Lawyer boot camps. All are part of building a reputation as an outstanding lawyer. DTCWV will help you
do it.
Do you want to bring in business? Let me be clear. The first and most important thing is to be an excellent lawyer. Know the
law. Know your cases. Do a great job for your client and communicate promptly and consistently. This being said, I think a good
source of business for litigators is referral business from other lawyers. These can be referrals due to conflicts, where a lawyer must
send his or her client to a lawyer they respect and trust to handle the matter. National counsel must hire local counsel; one way to
meet and get exposure to national counsel is through defense groups, like DTCWV. Now, don’t get me wrong – business development
takes a lot of effort and just being a DTCWV member isn’t enough, but I (and others) can vouch that it is a good part of a business
development strategy for many lawyers.
Do you want to train your young lawyers? Or, do you want great training? DTCWV provides outstanding “boot camps” with
instruction from some of our state’s best defense lawyers at a really reasonable cost.
Do you want a good deal for all that you get? Our dues, particularly for younger lawyers, are reasonable. Regardless of who
pays, I challenge anyone to show a better return on investment. If you have to pay yourself, go ahead and put some skin in the game.
You won’t regret it.
Do you want to make some great friends? Being associated with the great lawyers in this group has been an important part of
my development and who I am as a lawyer. I cannot express how grateful I am for the friends I made through DTCWV and how
proud I am to be a member.
Why Join Defense Trial Counsel of West Virginia?
By Thomas J. Hurney, Jr., Jackson Kelly PLLC, Charleston, WV

4. 4
Republican “Sea Change” in West Virginia Legislature
By Charles "Chuck" R. Bailey, Bailey & Wyant, PLLC, Charleston, WV
When I volunteered to help edit the DTCWV's quarterly news letter, a major shift in the political
landscape was emerging. The Republican Party was about to make history in gaining control of both the
House of Delegates and the State Senate. Shelly Moore Capito was the first female United States Senator
and the first Republican Senator from West Virginia in the 20th century. The three members of the U.S.
House of Representatives are now Republican, leaving only the Governor and Senator Joe Manchin as our
top tier Democratic elected officials, unless you include minority leaders in the Democratic party. Because
Governor Tomblin cannot run for reelection in 2016, and knowing that several Republicans have suggested
they will seek election to that office, we thought interviews with Republican Party leaders and persons
familiar with tort and business legislation would be interesting to our members.
Defense Trial Counsel Legislative Update
By Danielle W. Swann, Jackson Kelly PLLC
As has been written, blogged, and summarized by many of us for our firms, our clients, and our respective
professional organizations (including me, for the Defense Trial Counsel Notebook Articles), 2015 was quite
the legislative session for legal reform, including the passage of well over fifteen legal reform bills that affect
all areas of civil defense practice. From comparative fault and consumer protection to medical liability and
deliberate intent, defense practitioners can expect to see sweeping changes as the new laws go into effect:
changes in how cases are filed, changes in plaintiff’s strategy in pursuing these cases and changes to how
defense lawyers develop theories of their cases. In response to this sweeping reform, many Defense Trial
Counsel members have inquired whether to expect more legal reform next session. The short answer is
likely, although perhaps not as wide sweeping. This article will provide some insight into what our members
can expect in 2016.
Which reforms may be addressed in the 2016 West Virginia Legislature? The Legislature has given the
first indication by the identification of certain joint study topics for the 2015 interim sessions. While the legislature is not able to
pass legislation during interim sessions, it can review/analyze various topics and vote on recommendations on how to proceed on
certain legislation in the future. For 2015 interims, the Joint Judiciary Committee (the Committee generally charged with studying
legal reform) has identified the following two topics which directly affect our members: Intermediate Courts of Appeal and the
Collateral Source rule.
Many of you are aware that the legislature has reviewed and studied the Intermediate Court of Appeals issue several times, but
has not acted on same. However, as we know, the current legislature has identified and prioritized fairness in the legal system. If,
after a study, the Joint Judiciary Committee deems an Intermediate Court necessary to achieve the goal of fairness, I expect them to
proceed with moving legislation during the 2016 session.
I am pleased to inform you that the Defense Trial Counsel has put together an ad hoc legislative committee to address our
organization’s position on an Intermediate Court. Members of this Committee include Chazz Printz, Mark Hayes, John McCuskey,
Lee Hall, and Erik Legg. The purpose of the Committee is to formulate DTC’s position, analyze, and provide recommendations on
any proposed legislation, provide position statements and testimony to the extent requested, and report to the Board as necessary to
seek approval. With the leadership of these knowledgeable individuals, DTC is well-situated to be a key player in the Intermediate
Court discussion.
In addition to the Intermediate Court and collateral source discussion, what else might we see? Senate President Bill Cole has
indicated that the Legislature is willing to revisit technical issues with legal reform bills passed during the 2015 session. Additionally,
many items addressed last year did not quite make it to the finish line. These include: reform of the learned intermediary rule, the
medical records bill, and certain venue issues. Defense Trial Counsel was an extremely valuable voice during the 2015 legislative
session and will continue to provide sound advice to the legislature on issues affecting our organization and its members. It is an
honor to represent DTC on legislative issues. With the benefit of the experience, knowledge, and expertise of our members, DTC
is well positioned to effect positive changes to our legal system.

5. 5
Summary of Changes to the MPLA in the
2015 Legislative Session
By Phillip T. Glyptis and Paul “Kip” Reese of Steptoe & Johnson PLLC
INTRODUCTION
On March 18, 2015, Governor Earl Ray Tomblin signed Senate Bill 6 into law, which
made major changes to the West Virginia Medical Professional Liability Act (“MPLA”),
W. Va. Code §55-7B-1, et seq. Since its inception in 1986, the MPLA had been amended
in 2003 and 2006, but never as extensively or as broadly as this 2015 legislation.
The bill applies to all actions filed on or after July 1, 2015.
SECTION ANALYSIS
A. Legislative findings and declaration of purpose: § 55-7B-1.
Legislative findings and declaration of purpose often support arguments favoring the MPLA when constitutionality
is questioned.1
The findings and purpose for the 2015 amendments were such that the modernization and structure of
the health care delivery system necessitated an update of provisions of this article in order to facilitate and continue
the objectives which are to control the increase in the cost of liability insurance and to maintain access to affordable
health care services for our citizens.
B. Definitions: § 55-7B-2.
(1) “collateral source”- specifically excludes any agreed reductions, discounts, and write-offs of a medical bill.
New code cross reference: W. Va. Code § 55-7B-9a. Reduction in compensatory damages for economic loss
for payment from collateral sources for same injury. 2
(2) “health care”- now includes: (1) actions, services, or treatment provided pursuant to physician’s
or health care facility’s plan of care, medical diagnosis, or treatment; (2) service to treatment performed or
furnished, and extends health care activities to persons acting under the supervision or direction of a health
care provider or licensed professional, specifically including: (a) staffing, (b) medical transport, (c) custodial
care or basic care, (d) infection control, (e) positioning, (f) hydration, (g) nutrition, (h) similar patient services;
and, (3) the process employed by health care providers and health care facilities for appointment, employment,
contracting, credentialing, privileging, and supervision of healthcare providers. 3
(3) “health care facility” – no longer includes personal care home or residential board and care home,
but now specifically includes: pharmacy, end-stage renal disease facility, home health agency, child welfare
agency, group residential facility, health center, intellectual/ developmental disability center, other ambulatory
health care facility – in and licensed, regulated or certified by the State of W.Va., under state or federal law,
and, any “related entity”.
(4) “health care provider” – now includes physician assistant, advanced practice registered nurse, health
care facility, occupational therapist, speech language pathologist and audiologist, psychologist, pharmacist,
technician, certified nursing assistant, emergency medical service personnel, any person under direction of a
licensed professional, any person acting pursuant to or in furtherance of a plan of care, medical diagnosis, or
treatment, or, an officer, employee or agent of a health care provider acting within their course and scope. Any
other health care providers not specifically listed in the statute are very likely to be excluded. 4
(5) “medical professional liability” – now includes “other claims contemporaneous to tort or breach of
contract provided in the context of health care services.” 5
(n) “related entity” (NEW TERM) - includes any corporation, foundation, partnership, joint venture,
professional limited liability company, limited liability company, trust, affiliate, or other entity under common
1 See generally Manor Care v Douglas, 763 S.E.2d 73, 2014 W. Va. LEXIS 786 (2014).
2 See Kenney v Liston, 233 W. Va. 620, 760 S.E.2d 434 (2014).
3 See Gray v Mena, 218 W. Va. 564, 625 S.E.2d 326 (2005) (credentialing an activity not encompassed by the MPLA).
4 Phillips v Larry’s Drive-in Pharmacy, Inc., 220 W.Va. 484, 647 S.E.2d 920 (2007).
5 This amendment explicitly overrules current case law. See, Syl. Pt. 3, Gray v Mena, 218 W. Va. 564, 625 S.E.2d 326 (2005); Syl.
Pt. 3, Boggs v. Camden-Clark Meml. Hosp. Corp., 216 W.Va. 656, 609 S.E.2d 917 (2004).

6. 6
control or ownership, whether directly or indirectly, partially or completely, legally, beneficially or constructively,
with a health care provider or health care facility; or which owns directly, indirectly, beneficially or constructively
any part of a health care provider or health care facility. 6
C. Testimony of expert witness on standard of care: § 55-7B-7.
The bill adds the requirement that an expert witness’s opinion must be “grounded on scientifically valid peer-
reviewed studies, if available.”
D. Admissibility and use of certain information: § 55-7B-7a (NEW SECTION).
(a) There is now a rebuttable presumption that following information may not be introduced as evidence unless
it: (i) applies specifically to the injured person, (ii) involves substantially similar conduct or (iii) that occurred within
one year of the incident: (1) state or federal survey, audit, review or report of a healthcare provider or facility; (2)
disciplinary actions against a provider‘s license, registration or certification; (3) accreditation report of a health care
provider or healthcare facility; or (4) assessment of a civil or criminal penalty.
(b) If the health care provider or health care facility demonstrates compliance with minimum staffing
requirements under state law, the provider or facility is entitled to a rebuttable presumption that staffing was appropriate;
and,
(c) Any information introduced under this section must also be admissible under the West Virginia Rule
of Evidence.
E. Limit on Liability for noneconomic loss: § 55-7B-8.
This section of the MPLA provides statutory ceilings for limits on liability or caps for noneconomic loss for
any defendant which has medical professional liability insurance in the aggregate of at least one million dollars.
In 2003, noneconomic damages were capped not exceed $250,000 for each occurrence, regardless of number
of plaintiffs, defendants, or distributees, except as noted in subsection. There was a $500,000 cap for cases involving
wrongful death or permanent and substantial physical deformity, loss of limb, or bodily organ system. Each year since
2004, these limits have increased for inflation.
Now, this “cost of living” increase for capped non-economic damages cannot exceed 150% of $250,000
($375,000) or 150% of $500,000 ($750,000).
F. Several liability: § 55-7B-9.
A healthcare provider cannot be held vicariously liable for acts of a nonemployee under theory of ostensible
agency unless the alleged agent does not maintain professional liability insurance in the aggregate amount of one million
for each occurrence.
G. Limit on liability for treatment of emergency conditions for which patient is admitted to a designated
trauma center; exceptions; emergency rules: § 55-7B-9c.
The new law strikes the acronym “EMS” and substitutes “certified emergency service personnel”, “emergency
medical services authority,” or an employee of licensed emergency medical services authority. 7
Total civil damages may not exceed $500,000 for each occurrence, regardless of the number of plaintiffs,
defendants, or distributees. A new subsection was also added stating that as of January 1, 2016, and thereafter, damages
shall increase for inflation by an amount equal to the CPI published by the US DOL, not to exceed 150% of $750,000.
H. Adjustment of verdict for past medical expenses: § 55-7B-9d. (NEW SECTION)
A verdict for past medical expenses is limited to: (1) total amount of medical expenses paid by or on behalf
of the plaintiff, and (2) total amount of medical expenses incurred but not paid for which the plaintiff or another is
obligated to pay.
New code cross reference: W.Va. Code § 55-7B-2(b)(2) – definition of collateral source.
6 “Related entity” is a “healthcare facility.” §55-7B-2(f).
7 “Emergency Medical Services Authority” is defined at W.Va. Code § 7-15-4; 17-15-5. W.Va. Code § 55-7B-2(g) now includes emer-
gency medical services authority in definition of health care provider. “Emergency service personnel” is defined at W.Va. Code § 61-2-10b(a)(3).
Summary of Changes continued

7. 7
Interview with the Honorable Jennifer F. Bailey
By Charles "Chuck" Bailey, Bailey & Wyant, PLLC, Charleston, WV
Introduction
We decided it would be interesting to interview a Circuit Court Judge for this issue
and the remaining issues of our newsletter for the year 2015. Judge Jennifer F. Bailey
of the Thirteenth Judicial Circuit of Kanawha County, West Virginia provided the
first interview for this installment in our newsletter. Judge Bailey is now the longest
serving female trial court judge in West Virginia and is one of three female judges
in the Circuit Court of Kanawha County. She is joined by the Honorable Carrie L.
Webster, who was appointed by Governor Joe Manchin, and the Honorable Joanna
L. Tabit, who was recently appointed by Governor Earl Ray Tomblin.
Judge Bailey graduated from Hollins College with a Bachelor of Arts and graduated
from West Virginia University College of Law in 1980. She was an attorney in
private practice in Charleston from 1980-1993 and served as the attorney for the West Virginia Senate from 1993 to 2002. She was
then appointed to the bench by Governor Wise when Judge Herman Canady retired. After her appointment, she immediately had to
stand for re-election but ran unopposed. She was also unopposed in 2008 and will sit for re-election in May of 2016. Judge Bailey
is particularly proud of her accomplishments in spearheading the Drug Court in Kanawha County for persons addicted to drugs and
alcohol, which has been a tremendous success. I asked the following questions of Judge Bailey who gave her views on the present
challenges to the judiciary and hints for civil defense litigation lawyers like us.
Q: The West Virginia legislature passed a bill making judicial elections nonpartisan. What was your reaction?
A: The nonpartisan election of judges has been a topic of study and discussion for several years and was a top priority of the
Legislature this year. Being one of the remaining few states with partisan judicial elections, it is a change whose time has come.
After all, the very foundation of our democracy embodies “… justice for all.” We, therefore, must be ever vigilante that our justice
system works for everyone. While the new election process will be decided at the primary election, and thus presumptively reduce
campaign time and expenditures through the former two elections, the most difficult challenge for a judicial candidate is to campaign
and raise money to fund it. While the new process will reduce campaign expenditures along party lines, it would be nice if there
was a better way for judicial candidates to effectively campaign for election or reelection without the need for fundraising. The
legislation did not revise the provisions that circuit judges run in a division or seat and not collectively against other sitting judges
who are seeking reelection.
Q: When you graduated from law school, did you anticipate that one day there would be three female judges in the
Circuit Court of Kanawha County?
A: Actually, when I graduated from law school I was surprised that there were not more female judges. By way of history,
when I began law school, I was shocked by the absence of any female professors. Having attended a women’s college with many
women faculty members, I was accustomed to women being in positions of responsibility and authority. I also studied in Paris,
France for two undergraduate semesters which included a term at the Sorbonne. Most of my professors during my year abroad were
French women. And with 50% of my law school classmates being women, I raised my concern with no female law professors with
the Dean of the College of Law. It was his opinion that it was difficult to recruit female law professors to the city of Morgantown.
It is now refreshing to see that there are female law professors at the College of Law and two women have served as Dean in recent
years. And, of course, I am now honored to serve in a circuit where three of six women circuit judges in our state are presiding.
Q: What is the biggest challenge that you believe is facing the judiciary?
A: Clearly, the exponential growth of drug use and abuse is our state’s greatest challenge. It not only hurts our communities
and affects the safety and well-being of our citizens, but it drives a lot of what my colleagues and I are facing each day. There is an
increase in domestic violence and other criminal misconduct. Abuse and neglect filings have soared and juvenile misconduct has
grown, resulting in increased truancy and high student dropout rates. The lack of effective treatment programs to address the needs
of the addicted population strains state, county, and municipal resources. The judiciary is now challenged to micromanage many
of society’s ills with our constituency competing for services within the state for both adults and juveniles that are sorely lacking.
Each day judges throughout the State hear stories on how drug abuse and alcoholism tear families apart with the often inevitable
consequence of incarceration of family members and/ or the removal of children from homes. We are now populating our jails with
persons who are a danger to themselves or others while they await treatment beds for several weeks or even several months. The
adverse effect of addiction on the family structure, the court system, and indeed, the State as a whole, is immeasurable. And, because
of these challenges to the judiciary, other cases on our dockets, particularly civil cases, can be greatly impacted as criminal matters
and cases of abuse and neglect are not only time sensitive, but moreover, time consuming.
Q: How has the Drug Court helped?
A: Drug Courts, or court supervised outpatient treatment programs, are the nation’s most effective criminal justice programs.
And speaking of partisan politics, it is one of the few programs with bipartisan support in our present Congress. This program also
has bipartisan support in our state. And while mandated by the legislature to be throughout the state in 2016, only about one-half

8. 8
of our circuits have drug courts. The lack of drug courts is often due to the need for established community corrections programs,
including day report centers, to be in place before a drug court can operate. But to answer your question, I believe that every judge
in our State who has undertaken to serve as a Drug Court Judge, will agree that these programs have been of great help to our
communities, and of no small significance, to our court system. However, it is time consuming and is undertaken in addition to all
other cases assigned to us. Typically, we are in session once a week for four hours and each day I receive texts, emails, progress
reports, and information regarding some aspect of the drug court. It requires me and others to make decisions daily that affect the
program and its participants. Approximately fifty people can participate in the program which takes at least one year to successfully
complete. There is a lot of supervision of participants and each is held accountable to meet the program’s requirements and goals.
We have an 85% success rate. Drug free babies are born because of the Drug Court. The result of rehabilitating and redirecting
this criminal population has been phenomenal. We see persons in sobriety able to financially support families, parent their children
and become taxpayers instead to tax takers. It is one of the most personally rewarding experiences I have ever had. Our drug court
graduations are true celebrations of recovery.
Q: With regard to civil matters, what do you key in on when a motion for summary judgment is filed?
A: Primarily, of course, summary judgment is not warranted when there are truly genuine issues of material fact. While
I know that is the basic law we all know and recite, there are many motions filed and argued when the factual disputes simply
warrant no such relief. If there is no such factual dispute, the most important aspect of summary judgment is the law. I ask that
the lawyers know and cite the most up to date West Virginia law, and if there is no West Virginia precedent, then cite precedent
from the District Courts of West Virginia or the Fourth Circuit Court of Appeals (in their interpretation of West Virginia law). At
the summary judgment stage, it is important to apply the law to the facts. Worthy of noting from my perspective, the fact that the
scheduling order provides a deadline for filing motions for summary judgment and a hearing date therefor does not mean you
need to file one. Plaintiffs and defendants routinely file motions for summary judgment when there are clearly genuine issues of
material fact which defeat the motion. There are also many instances where a party seeks summary judgment before the close of
discovery and the full development of possible relevant facts. I am amenable to adjusting the scheduling order rather than hear
motions before they are ripe for consideration. I am also sometimes perplexed at the summary judgment stage that plaintiffs’
continue to advance claims that are clearly no longer viable because the motions are argued after the close of discovery and the
uncontroverted facts just won’t support the claim. Each side should know by that time which claims are viable. Irrespective of
the strength or weakness of the parties’ positions, once the parties appear for a hearing, I listen to and consider their arguments as
there may be something presented at that time that is more persuasive than the written filings.
Q: What about presiding over civil jury trials?
A: It is refreshing to be able to preside over a good, old fashioned civil trial. Most of the attorneys who practice civil law are
experienced, well versed and understand the rules of Civil Procedure and Evidence and practice civility. I enjoy observing a well
presented civil case and, as I often repeat, judges are only as good as the lawyers who appear before us. Indeed, those well plead
and well said arguments and issues challenge us to analyze a case and to study and apply the most updated and applicable law.
My staff also enjoys civil trials. Day after day we hear about bad conduct that leads to the demise of families and the incarceration
of people. The civil trial is often a refreshing diversion from that daily routine.
Q: What do you find most important, opening statements or closing arguments?
A: While opening statements are certainly the first opportunity to address the jury as they begin to “size you up,” that first
appearance is also your time to introduce the theme of your closing argument. And, in my opinion, for the most part, closing
arguments win juries. A well-crafted closing argument ties together the evidence and the law (citing the instructions) and provides
counsel the opportunity to fully articulate their theme of the case and to explain at the close of the evidence why his or her client
is entitled to their verdict.
Q: What other recommendations do you have for attorneys in civil matters?
A: From where I sit, I see jurors who watch the lawyers and pay attention to them. Therefore, trial attorneys should always
conduct themselves professionally. The jurors appreciate lawyers who are respectful to the court, to its staff and to opposing
counsel and, not to be forgotten, opposing parties. Most usually a condescending attack on the credibility of an opposing party or
their witnesses does not impress jurors. They also understand when lawyers are not prepared. If one is fumbling around through
files and papers, they notice. Also, if you tell a jury in opening statements you are going to prove a fact or facts from which they
will be able to draw reasonable inferences, you should do so. One of the most persuasive and effective closing arguments of your
opponent is to remind jurors what you said you would prove that you didn’t.
Q: What other some problems of trial presentation that you have observed?
A: The art of impeachment with a deposition is a lost one. Lawyers seem either to forget how to do it or do not know how
to do it. If you are attempting to impeach a witness, or refresh their recollection, then it should be done properly. That is, first
determine whether or not there has been a change in testimony. If so, show the witness the deposition and allow them to read the
question and their answer. Lawyers immediately start referring to the deposition testimony before there is any foundation laid for
it. Lawyers refer to depositions before there has been any inconsistent testimony or before there is a need to refresh the witness’s
recollection. This is confusing to the jury and frustrating to the Court. Please have proposed exhibits first marked for identification
purpose only, hand it to the other counsel, and show the witness the exhibit, after seeking permission to approach the witness (as

9. 9
Interview with Senator William P. Cole, III
By Charles "Chuck" Bailey, Bailey & Wyant, PLLC, Charleston, WV
provided in the trial court rules). Lawyers are beginning to publish exhibits before they are even introduced into evidence. There
is a proper manner in which to introduce exhibits as evidence. For some reason, the laying of the proper foundation has become
a lost art.
Also, the pretrial is truly a time where lawyers from both sides should strive to narrow the issues for the trial and have a clearer
understanding of the evidence each side intends to present, with final witness lists and the types of exhibits they will use to present
the case. Ordinarily, I will hear motions in limine and rule on them at the pretrial or as expeditiously as possible before trial.
I found the conversation with Judge Bailey insightful and refreshing. Many of us believe the opening statement is the most
important aspect of the trial. Therefore, I noted with interest her belief that the final argument is perhaps more important. Her
enthusiasm for the drug court and the day report center made me think about how I, as a civil lawyer, am often unaware of the other
challenges the judiciary faces. It is evident that Judge Bailey is deeply concerned about how the prescription medication problem,
and other forms of drug abuse and addiction have affected the families. She spoke of unwed mothers with little or no support,
broken homes, and other domestic problems that we as civil practitioners rarely see in our practice.
Introduction
William P. Cole, III (“Bill”) became the first Republican President of the
West Virginia State Senate in eighty-three years. In fact it has been eighty-three
years since the Republicans enjoyed a majority in both houses of the West Virginia
Legislature. Mr. Cole was able to obtain majority status when Daniel Hall, a former
Republican, but who successfully ran as a Democrat in 2012 in the Wyoming/Raleigh
County Senatorial District, switched back to the Republican Party following the
2014 election. This provided Senator Cole the opportunity to become President of
the Senate and gave the Republicans an 18 to 16 majority. Mr. Cole is from Mercer
County. He was previously appointed by Governor Manchin to serve in the House
of Delegates for Mercer County. He replaced John Schott, who was appointed to the Senate to replace Don Caruth, a Republican,
who won the seat as a Republican, which came as a surprise to many political pundits. Don died while in office. He was a member
of the law school class of 1982 and was my classmate and well-known attorney to the WVDTLA. Mr. Cole, following his 6 month
appointment to the position by Governor Manchin, elected not to run, but ran in the 2014 election and won. Mr. Cole pointed out
that in 2011, there were twenty-eight Democrats and six Republicans in the Senate, but the Republicans surged to the majority
during the election of 2014. He said the Republican Party worked hard to find good, viable candidates and to establish a platform
that would appeal to West Virginia voters. I asked Senator Cole the following questions:
Q: What did you find most significant about this legislation?
A: We passed substantive bills ranging from tort reform to amending the Aboveground Storage Tank law to make it fairer.
The volume of bills introduced by the legislature was relatively the same as in the past, but this year important bills were passed
early, laying the foundation for more opportunities for West Virginians. We were able to garner bipartisan support for the bills
as conservative Democrats who had served under more liberal Democratic leadership were able to support the Republican Party
in its initiatives. Unlike the Senate and House of Representatives in Washington, this legislature was able to introduce bills with
bipartisan support, get them passed and demonstrate that meaningful legislation can be passed through hard work.
Q: While most of the tort reform bills such as deliberate intent and comparative fault passed the Senate with a
substantial majority of Senators voting for it, the punitive damages bill seemed to have met some resistance.
A: Yes, but it shows how we worked together in the Senate to get the limitation on punitive damages passed. The Senate
originally voted 16 for and 18 against the legislation. Procedurally, however, the Republicans were able to allow the bill to be
reconsidered. Once the bill returned for re-consideration, it passed 27 for and 6 against. Again, through substantial effort by the
Senators we were able to reach a compromise and pass the bill.
Q: The non-partisan election of judges seemed to have passed easily, why?
A: The general consensus among lawmakers was that the judiciary should be elected on a non-partisan basis. There was
really no reason for partisan politics to be involved in election of men and women who have to fairly and impartially adjudicate
the important issues that come before them. One significant aspect of the bill is that there is only one election - May 16, 2016;
eliminating the need for a general election votes in November of 2016. This substantially reduces the amount of campaigning a
candidate has to undertake and cuts the amount of money that a judicial candidate may have to raise for campaigning. Prior to this

10. 10
bill passing, judicial candidates had to run once in the primary and again in the general election. The judicial candidate no longer
has to run twice. This bill passed 33 to 0.
Q: What are some examples of other significant legislation that passed during this most recent session?
A: There was other significant legislation that we were able to pass with relative ease, like the modification of the deliberate
intent bill. This bill clarified the original intent of the bill to eliminate the presumption of intent and passed 32 to 2. We also passed
the comparative fault bill 28 to 6, the premise liability 33 to 0, the open and obvious bill 28 to 3, the prevailing wage bill 23 to 11,
the separated employee wage payment bill 25 to 9, the Revised Uniform Arbitration Act bill 31 to 3, the consumer protection bill
31to 3, the punitive damages bill 27 to 6, the medical professional liability bill 31 to 2, and the alternative teacher certification bill
29 to 3. In addition we were able to modify the Aboveground Storage Tank bill which passed 31 to 3. Everyone wants clean water,
but many of the tanks that required inspection were nowhere near water sources. It is significant that all the tanks were registered
under the law and we know where they are. However, the original legislation could be construed as regulating fifty-five gallon
drums of rain water sitting on farms.
Q: How was your relationship with Governor Tomblin?
A: We had a phenomenal relationship with the Governor. We work closely with the Governor’s Office. 262 bills were
passed, and eighteen were vetoed. Four of the eighteen were vetoed on technical reasons. In summary, we work closely with the
Governor to pass legislation that will attract business to locate in West Virginia and create new jobs and to establish a better business
environment for the existing businesses so that they will create new jobs, too.
Q: How do you believe that tort reforms and business reform legislation will actually impact West Virginia?
A: Business development is not just one simple idea or solution. For instance, I am in the car dealership business. The major
manufacturers of automobiles want us to build large auto malls under “the build it and they will come.” It works. We are counting
on the fact that we have passed significant legislation that should attract businesses to come to West Virginia. We want everyone
to see the great strides we are making. One example is the Revision to the Uniform Arbitration Act which needed amendment to
bring it in line with the trend across the nation and United States Supreme Court’s decisions favoring this form of alternative dispute
resolution.
Q: One of the more interesting pieces of legislation I thought was the elimination of the straight ticket voting. How
did that come about?
A: For more than eighty years the Democrats had the advantage of straight ticket voting because of the number of registered
Democratic voters. This changed, however, during the last two voting cycles where Republicans had the advantage of straight
ticket voting. Nevertheless, elimination of straight ticket voting was one of the Republican Party platforms and we were not going
to be hypocrites by changing the party platform, despite the change in voter behavior. The Republican leadership believed it was
in the best interest of the State to eliminate it. To my utter disbelief, however, near the end of the session, Senate Minority Leader
Jeff Kessler argued against the bill. Despite the fact it may have been in the Republicans best interest to quietly support Senator
Kessler, we stuck to our platform and passed it.
Q: How is the political landscape in West Virginia changed?
A: Presently approximately 28% of voters are Republican, 50% are Democrats, and 21% are Independent or “Other.” The
remaining 1% is mixed between other parties such as the Mountain and Libertarian parties. The Independents appear to lean
toward the Republican ideology. In 1994, the Democrats enjoyed 65% voter registration, whereas the Republicans had 30% and
Independent or “Other” was 4%. As the number of Independents increased approximately 17% over the years, the number of
Democrats dropped approximately 15%; a 30% swing toward the middle. Therefore the Independent vote is very important in
determining the outcome of the elections in the State of West Virginia. Recognizing this, the Republican Party is dedicated to show
that government can come together in the middle and work.
Q: Prevailing wage did cause a controversy.
A: Yes, but the passage of this bill was important as it will save the tax payers millions of dollars. Considerable effort was
undertaken and a reasonable compromise was reached to pass this legislation. Once again, the leadership in the Senate and the
rest of the Senate worked hard to reach appropriate compromises to get the bill passed.
Q: Any parting remarks?
A: Yes, once again I would like to state that we were very proud of the accomplishments during the legislative session. Unlike
Washington, we wanted to show that government can work.
Q: Do you plan to run for Governor in 2016?
A: I’m seriously considering whether to run. I know that Attorney General Patrick Morrissey has expressed an interest in
the office as well as Congressman David McKinley. I plan to make an announcement relatively soon of my intentions.*
*After the interview, Senator Cole announced he was running for Governor.

11. 11
Interview with Senator Charles Trump
By Susan R. Snowden, Martin & Seibert, LLC, Martinsburg, WV
As a member of the Board of Governors for DTCWV, I had the pleasure of
interviewing Charles Trump, IV, Senator from District 15, encompassing Mineral,
Hampshire, Morgan, Berkeley, and Jefferson Counties of West Virginia.
Trump, a Republican and lifelong resident of Morgan County, currently
serves as Chair of the Judiciary Committee, Vice Chair of the Agriculture and
Rural Development Committee, Vice Chair of Pensions, and serves as a member
on the Banking and Insurance, Education, Health and Human Resources, and
the Rules Committees. Interim Committee assignments include Government and
Finance and Special Investigations.
Snowden: What was it like to return to the Legislature in 2016, this time as a
Senator and a member of the majority party?
Trump: As you know, I served fourteen years in the House and, although I enjoyed my time as a member of the House of
Delegates, it was certainly different being in the minority party rather than being a member of the majority. The Senate is a little
less raucous than the House, which is just a function of having one-third of the members.
Snowden: What was the most exciting change for you returning as a Senator?
Trump: Being in the majority, with authority to set the agenda for the session, was an exciting change for me. Preparing for the
session required a lot of work between November and the beginning of the session, a period of just two months. The shift in control
required the changing of offices, staff, and other flurry of activity before the session began. While it was thought that control of the
House of Delegates might shift in the election, it was not predicted that control of the Senate could change. When the polls closed,
there was a 17/17 split between Republicans and Democrats in the Senate. When Senator Daniel Hall switched his registration to
Republican, it changed control of the body and brought new leadership to both houses of the legislature.
Snowden: What was the process by which you were selected as Chair of the Judiciary Committee?
Trump: When the Republicans became the majority, initially, Senator Clark Barnes was slated to serve as Chairman of the
Judiciary Committee. I was going to serve as the vice-chairman. Clark resigned his senate seat, however, to become the Clerk of
the Senate. Among the eighteen Republicans in the Senate, I am the only one who is a lawyer. That, coupled with the fact that
I had legislative experience as a member of the House of Delegates, are what I think caused President Cole to appoint me as the
Chairman of the Judiciary Committee. Because of being a lawyer. I am so glad that he did. I have loved every minute of serving
in that capacity.
Snowden: What is so exciting about being Chair of the Judiciary Committee?
Trump: The Senate Judiciary Committee has enormous impact on the law, on the judiciary, and on policy. Of 585 Bills and
resolutions that were introduced in the Senate, 412 were referred to the Judiciary Committee for consideration. That breadth of
jurisdiction allows the members of the Judiciary Committee to have a profound impact upon the future of our State.
Snowden: What are the two most important things that you believe happened in this year's legislative session?
Trump: For me, the most important measure has to be nonpartisan judicial elections. Judges are required to be independent and
impartial. West Virginia’s Code of Judicial Conduct prohibits judges and judicial candidates from engaging in many common
political activities. Juxtaposed against this imperative for judicial independence and the prohibition on inappropriate political
activity is our practice of electing judicial candidates in West Virginia as partisan candidates. That will all change now. No
longer will candidates for judicial office run as adherents to political party platforms. Now, Supreme Court justices, circuit court
judges, family court judges, and magistrates in West Virginia will all be elected on non-partisan ballots. Their elections will occur
in May, which will help to insulate them from the cacophony of partisan politics that occurs in election years between May and
November, and their elections in May, as opposed to November, will diminish the importance of raising and spending money for
their campaigns.
The second most important thing we did was our bill to reform the prevailing wage law governing projects funded with public
money. My prediction is that millions of dollars will be saved by the state, by counties, by school boards, by municipalities, and
by other governmental entities as a result of that change in the law.
Snowden: Everybody keeps talking about Civil Justice Reform and Tort Reform. Was that type of reform really a change?
Trump: There were some important, but measured, changes that were made to state statutes. All of the bills relating to civil justice

12. 12
And there are more changes to come:
An interview with House Judiciary Chair John Shott
By Steven L. Snyder, Jenkins Fenstermaker, PLLC, Huntington, WV
Lawyers in Bluefield may be a little different than other West Virginia attorneys.
The town straddles the border with Virginia and lawyers there have to deal with two
legal systems that in some ways are quite different. Attorneys there also have to
be flexible with their practices. The economy is not big enough to support many
specialists and so it is common for lawyers to handle a wide variety of cases and
clients.
John Shott was born in Bluefield almost sixty-seven years ago and except for a
detour to North Carolina to attend college and law school, he has lived there all his
life. During a legal career that spanned almost four decades, he demonstrated the
flexibility that may be common in a Bluefield attorney: Shott represented plaintiffs
and defendants, practiced civil and criminal law, and was a member of the pro-plaintiff West Virginia Association for Justice and
the pro-business Greater Bluefield Chamber of Commerce.
Shott does have one experience that distinguishes him from the Bluefield legal community: He has been both a state Senator
and a member of the House of Delegates. Currently, Shott chairs the House Judiciary Committee. From that perch, the Republican
delegate observed a very unusual legislative session in 2015: “I think by just about any measure it was [extraordinary]. In terms of
volume, in terms of significance, in terms of bipartisanship, believe it or not. There were a lot of these significant bills that passed
with bipartisan support. So while we’ve been labeled as radical, I don’t think the facts bear that out.”
In past years, bills sponsored by the minority party rarely were passed: “I think in 2014 there was only two percent, and in
2013 and 2012 there was only one percent.” In 2015, Shott said that fifteen percent of the bills enacted into law had a Democrat,
a member of the minority party, as the primary sponsor. “That’s highly unusual.”
Of the many bills that cleared both chambers and were signed into law by the governor, two directly affect the judiciary: SB
249, which eliminates straight-ticket voting, and HB 2010, which requires non-partisan election of judges.
Shott said Republicans were in the minority when they first embraced the elimination of straight-ticket voting and the establishment
of non-partisan judicial elections. Republicans wanted individual candidates to be judged on their own merits rather than suffering
were considered in the Senate Judiciary Committee. We had extensive involvement in our deliberations with trial lawyers and the
defense bar. The actions of the Legislature this year will bring West Virginia into the mainstream of states on issues of punitive
damages, joint vs. several liability, premises liability, and several other areas.
Snowden: Can you give me some examples of what you mean by bringing West Virginia into the mainstream?
Trump: For instance, with the Medical Professional Liability Act (“MPLA”), we expanded it to include nursing homes into the
act, and now suits against nursing homes are subject to the cap on damages, as well as pharmacies and pharmacists. Another
example would be the Division of Highways audit. So many tax dollars and such a large amount of the budget flow through the
Division of Highways. The Legislature believed it was a good idea to audit this agency to make sure we are making the best use
of taxpayer money.
Snowden: Were there other reforms to save taxpayer money?
Trump: At least twenty-one governmental boards, bureaus, and commissions were eliminated. Those boards were redundant, and
by dissolving them we are saving travel expense and duplication of efforts.
Snowden: Looking to the future, what do you believe is the future of the Charter School bill?
Trump: I was disappointed that the charter school bill did not pass. It was really just a pilot measure, authorizing the creation of
two charter schools in the whole state each year. I believe that eventually this type of legislation will pass. I do not believe that it
is a "silver bullet" for education, but it is an alternative that has yielded successes in many other states, and it would provide an
opportunity for examination of a model that might improve the whole system of public education in West Virginia. We need to
decentralize a good bit of public education and allow more autonomy.
I am looking forward to the next session and an agenda to make West Virginia a more attractive business environment to
strengthen our economy and our citizens. We are determined to look at tax reform next session, as well as further measures to
control the growth of government. We have important challenges ahead, but the citizens deserve opportunities for prosperity.

13. 13
guilt by association. Now that the minority has become the majority, and straight-ticket voting has started favoring the Republicans,
some members of the G.O.P. have changed their opinion about the merits of straight-ticket voting -- but not Shott: “The ultimate
conclusion was that if it was right before we took over the majority, then it should be right now. It’s a principle thing.”
Eliminating straight ticket voting and partisan elections may lead voters to more carefully consider each judicial candidate
and to have more confidence in the impartiality of the bench: “Both of those bills were part and parcel of an effort to try to make
judicial elections appear to be not only more impartial but more thoughtful. People would not just hit one button and then walk
away. They would have to look at each candidate and give some thought to that candidate, that race.”
The public, Shott hopes, will no longer think of judges as being wedded to a particular party and its ideology: “The biggest
benefit [of the bills] is hopefully the elimination of the perception among people who come before those judges that they might be
beholden to one group or another. I know a lot of the businesses that I have talked to were always concerned about going before
a judge who was supported by the trial lawyers.”
A bill that Shott successfully sponsored “flew under the radar” but should make a difference to the state’s judiciary. HB 2726
was aimed at clarifying the choice of law in product liability actions. It provides that in suits brought in this state by non-residents,
the law of the place of injury will apply – “lex loci delicti.” Shott is hopeful that this law will dissuade out-of-state attorneys from
taxing West Virginia’s judicial resources for mass tort cases that have nothing to do with this state: “It will free up some judicial
time and eliminate the diversion of our judges and our judicial resources from handling cases in which we should have no interest
whatsoever.”
Shott is hopeful that other newly enacted laws will help inspire confidence in businesses who wish to open shop in West
Virginia. They will soon enjoy the following results of this year’s legislative session:
• Punitive damages limit (SB 421): This legislation caps punitive damages at four times the compensatory
damages award or at $500,000, whichever is greater. Shott does not believe this new law will have a “big practical
effect on the bulk of cases” that go to trial, since most jury awards already fall within the new parameters, but
it should have a significant impact on settlement negotiations given that there will no longer be the “threat of a
$100 million punitive damage” award.
• Deliberate intent (HB 2011): One of the most publicized legislative battles concerned this attempt to narrow
the deliberate intent exception in workers’ compensation cases. Courts had construed the law so that an injured
worker could avoid the bar on litigation imposed by the workers’ compensation law by simply pleading “a
higher grade of negligence” on part of the employer. The new legislation seeks to “restore the intent of what
‘deliberate intent’ was. And I think we moved in that direction. I’m not sure we’ve gotten there quite yet, but
we’ve moved in that direction.”
• Unmitigated front pay (SB 344): Perhaps unique among states, West Virginia permitted employees who proved
malice in connection with their terminations to recover both punitive damages and unmitigated front pay. “I don’t
do much employment law but I’ve always wondered how in the world that ever got to be the law. It doesn’t make
any sense whatsoever. It is in many ways a double punitive damage award.” The new law seeks to eliminate
that aberration and will be seen as a “very significant” change by employers.
• Comparative fault (HB 2002): This change to the law will make a defendant’s liability several and not joint in
most negligence actions. While that provision benefits defendants, one feature of the law may not: A plaintiff
is barred from recovery only if the plaintiff is more at fault than the defendants. “You’ve eliminated that 50/50
dogfall kind of case. Now the plaintiff has to have been more at fault to be barred, not equally at fault. That
might have an effect in encouraging more settlements.”
During this past legislative session, Shott feels lawmakers did “most of the heavy lifting in terms of substantial changes.” He
predicts the next session will feature some “fine tuning. When you do some comprehensive bills, you come back and look at them
a second time, or a third time, and see maybe they could be done a little differently or a little better.”
Shott said legislators will also be looking at “some way to assure the guaranteed right of appeal, either through an intermediate
court system or through some way to deal with the Supreme Court’s workload in a way that will give them the time to make sure
every case gets a full appeal.” Shott believes the penal code will receive attention, as legislators look for ways to stem the drug
epidemic and combat the ever-inventive criminals. “I hope we’ll be looking at some things to do on the prevention and treatment
end of that spectrum as well.”
Over the many years he has lived in Bluefield, Shott has “seen a pretty steady migration of business across the line from West
Virginia to Virginia.” As the job opportunities have moved, many residents have followed in their wake. If the bills enacted this
year have their intended effect, perhaps that migration may slowly be reversed.

14. 14
Practical Implications: House Bill 2002 (Comparative Fault) –
A Front-Line Litigator’s Homework
Senate Bill 421 (Punitive Damage Cap) – Short of the Mark
By Jacob R. Shaffer, Dinsmore & Shohl, LLP, Charleston, WV
The practical impact of any piece of legislation is often times difficult to predict. No matter how
many studies are conducted, how much research is performed, or how the language of each bill is carefully
scrutinized and crafted, once that legislation is effective, all bets are off. The legislature, perhaps not
admittedly, must then rely on judges, lawyers, businesses, and your next-door-neighbor to work together—
and opposite each other—to apply the laws that it enacts. Although the 2015 West Virginia legislative session
saw the enactment of several necessary and key pieces of legislation related to business development and
tort reform, how many of these laws will have the practical impact desired by their authors and proponents
and, more importantly, which will have the greatest impact on the everyday practice of law in West Virginia?
Truly, only time will tell. But, that will not make for a very interesting article, so we’ve decided to
take a crack at this imperfect science with the assistance of fellow Defense Trial Counsel of West Virginia
member, Thomas Kleeh. Tom is a member of Steptoe & Johnson, PLLC, in the Charleston, West Virginia office, where he focuses
his practice in the areas of employment and labor law and has been advising and defending employers on a daily basis since he began
with the firm in 1999. Tom also served as Per Diem Staff Counsel to the Senate Judiciary Committee during the 2015 West Virginia
legislative session and was intimately involved in the discussion, debate, and drafting of many of these pieces of legislation. Based
on his experience both as a front-line litigator and counsel to the Senate Judiciary Committee, Tom offers a unique perspective, and
opinions, on which piece of legislation will likely have the greatest impact on everyday litigators as well as the legislation that may
not have gone far enough to achieve its intended purpose.
When we spoke, it was not long into our conversation when Tom, unequivocally, stated his pick for the bill with the most
practical impact, “House Bill 2002 is a must-read for any attorney that litigates.” In describing the bill, he explained that “it represents
a dramatic overhaul of how we have handled negligence claims in West Virginia for years.” Generally, House Bill 2002 relates to
comparative fault and the establishment of “several liability” as the default rule for most negligence causes of action. House Bill 2002
marks a significant departure from the prior “joint and several liability” rules that previously governed how fault was apportioned
among an injured party and others that may have caused the injury, whether a defendant or a non-party.
Although it does certainly warrants a read, House Bill 2002, which will be enacted at W. Va. Code §§ 55-7-13a through 55-7-
13d, establishes a situation where everybody to a civil action: plaintiffs, defendants, non-parties, third-parties, and settling parties will
all be listed on a verdict form for the trier of fact to apportion fault in a negligence claim. The bill specifically requires that “the trier
of fact shall consider the fault of all persons who contributed to the alleged damages regardless of whether the person was or could
have been named as a party to the suit.” Id. § 55-7-13d(a)(1). Indeed, the fault of a nonparty shall be considered if the plaintiff entered
into a settlement agreement with the nonparty or if a defending party gives notice no later than 180 days after service of process that
a nonparty was wholly or partially at fault. Id. § 55-7-13d(a)(2).
An additional change is the percentage of fault attributable to a plaintiff that is necessary to bar recovery, which now must be
“greater than the combined fault of all other persons responsible for the total amount of damages[.]” Id. § 55-7-13c(c). Further,
in “all instances where a nonparty is assessed a percentage of fault, any recovery by a plaintiff shall be reduced in proportion to
the percentage of fault chargeable to such nonparty” and “where a plaintiff has settled with a party or nonparty before verdict, that
plaintiff’s recovery will be reduced in proportion to the percentage of fault assigned to the settling party or nonparty.” Id. § 55-7-
13d(a)(3). Notably, however, assessments of percentages of fault for nonparties are used only to determine the fault of named parties
and do not subject a nonparty to liability in that or any other action and may not be introduced as evidence of liability in any other
action. Id. § 55-7-13d(a)(5).
Nonetheless, each defendant will only be liable for the amount of damages allocated to that defendant in direct proportion to that
defendant’s percentage of fault. Id. § 55-7-13c(a). There is not joint liability unless two or more defendants “consciously conspire
and deliberately pursue a common plan or design to commit a tortious act or omission.” Id. Interestingly, though, there is a provision
that permits a plaintiff to seek leave of the court for reallocation of any uncollectable amount from a liable defendant if good faith
efforts to collect have failed. Id. § 55-7-13c(d).
House Bill 2002 does create certain blanket exceptions to the default rule of “several liability,” which includes, lawsuits under
the Government Tort Claims and Insurance Reform Act, W. Va. Code §§ 29-12a-1, et seq., Uniform Commercial Code, W. Va. Code
§§ 46-1-1, et seq., and medical negligence and malpractice claims under W. Va. Code §§ 55-7b-1, et seq. It also provides for “joint

15. 15
and several liability” amongst defendants under certain additional limited circumstances related to, among other things, driving under
the influence of alcohol or controlled substances, committing criminal acts that cause harm to the injured party, or illegally disposing
of hazardous waste. Id. §§ 55-7-13c(h)(1)-(3).
Tom predicts that enactment of House Bill 2002 will increase the significance of third-party practice because if a plaintiff fails
to name a potentially liable party, the defendant must promptly investigate and file the appropriate notice within 180 days in order
to preserve the ability for that party to be on the verdict form, which could be critical for the apportionment of fault, particularly if
the unnamed party was strategically not added because it lacks assets or service of process would be difficult. He also believes that
the change from the amount of fault attributable to a plaintiff that is necessary to bar a plaintiff’s negligence claim—from 50% to
51%—will be significant. Stated again, House Bill 2002 deserves a read—maybe more than once.
On the other side of the coin, and with some hesitation, Tom indicated the piece of legislation that will not likely have as great
of the practical impact that was desired is Senate Bill 421. As it was introduced, Senate Bill 421 proposed a limitation on punitive
damages of a ratio of 2:1 to the actual compensatory damages awarded. However, after debate and compromise, the bill was amended
to provide for a punitive damage limitation of a ratio of 4:1 or $500,000.00, whichever is greater. Senate Bill 421, as amended, passed
the legislature and will be enacted at W. Va. Code § 55-7-27.
Although Tom believes that Senate Bill 421 will provide comfort to businesses and other entities that there is a cap on punitive
damages that may be levied, a historical analysis of past decisions regarding punitive damage awards by the Supreme Court of
Appeals of West Virginia demonstrates that few punitive damages awards have ever implicated a ratio of 4:1 or higher. Thus,
although the cap is in place, it may rarely, if ever, be used. Moreover, the 4:1 ratio puts West Virginia near the high-end of those states
that have limitations on punitive damage awards. The punitive damages cap is surely a step in the right direction and represents a
bipartisan accomplishment, but it may not be as effective as originally introduced. To be clear, however, while the punitive damages
cap may not often impact the everyday litigator, it will certainly become a critical consideration for companies looking to provides
jobs and do business within our great state.
As the economist Irving Fisher remarked three days before the Wall Street Crash of 1929, “stock prices have reached what looks
like a permanently high plateau.” Let’s see if we predict better than he did.
Loss Prevention Tips for DTC Firms
TAKING THE PAIN UPFRONT – THE CONFLICTS CHECK
By Stephen Crislip, Jackson Kelly PLLC, Charleston, WV
Every firm has some system, but their effectiveness varies greatly. Small firms check manual lists and
even ask everyone about new files. Bigger firms have to use expensive software to run for multiple offices
and numerous files. The flaw in both is the human factor. You have to do the conflict check properly at
the beginning, and correctly later when the parties change.
A conflict, in an otherwise winnable claim against you, will change the result against you. Juries punish
those with perceived divided loyalty. I have watched mock juries go 180° when the facts were changed
to show that the lawyers were in a conflict, even if de minimus. Their reaction is immediate and sharp in
dollars awarded compared with the no conflicts fact pattern.
Everyone loves the new business of a good paying client. The risk of losing a long-term good client
and having a claim against you must make the “no” process a fundamental firm act when a conflict presents
itself. Some compensation systems make it worse by rewarding any origination, causing cuts on conflict corners.
You must make the conflict check absolute on every case before any work is done. Otherwise, you may lose more than one
file. Management must back up such intake decisions which are best usually done by someone with experience in the area and no
stake in the file. A simple way to enforce such checks is to prohibit a file from being opened until done and absolutely regulate
on any who work a matter — then open it. Facts change or new parties enter: insist upon another conflict check in the normal
course of the file.
The pain upfront is ultimately worth it. Sure you lose a piece of business occasionally which a competitor would take. However,
it only takes one bad conflict claim to convince you the front loaded pain is the way to go.
At a recent carrier symposium in Chicago, General Counsel on the panel made it clear they were looking for loyalty in their
outside counsel, despite what any technical conflict rules might provide. They stressed that counsel better recognize conflicts early
and then immediately communicate with General Counsel about them. The panel stressed good communication, not an e-mail,
so that these issues can be addressed. Usually good and prompt discussions help resolve such issues. You never want General
Counsel to feel betrayed by their outside firms. You will lose the trusted advisor status pretty quickly that way, so conflicts matter.

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Privacy and protection of personal information has become an important consideration in all industries
across the globe since the advent of the digital age. Data breaches at Target, UPS, Dairy Queen, JP Morgan
Chase, Sony, and many others made headline news in 2014. These events cost those companies millions
of dollars in defamation of brand, lost sales, and compensation to clients.
HIPAA is the Health Insurance Portability and Accountability Act of 1996. HITECH is the Health
Information Technology for Economic and Clinical Health Act enacted as part of the American Recovery
and Reinvestment Act of 2009. These laws and recent rules establish a framework for the privacy and
security of “Protected Health information” (PHI or ePHI) and “Personally Identifiable Information” (PII)
as it is collected, stored and transmitted in the Internet world of professional hackers, cloud storage, social
media and mobile devices. Law firms and court reporting firms with access to PHI could find themselves
classified as “business associates” to “covered entities” and as such would be directly liable for compliance.
These laws are designed to change the way law firms and court reporting firms account for and handle PHI, ePHI and PII.
Implementing these changes at your firm will require an investment of capital and labor. The decision regarding your investment
in HIPAA-HITECH compliance can be posed in a series of business-related questions:
• Is this a prudent investment?
• What benefits will accrue to the firm?
• How will the investment impact profits and partner incomes?
• What are potential downsides of taking no action?
• Could an investment of X dollars now save or generate X+10 dollars going forward?
Looking years into the future, will the impact of these laws increase or decrease? The impact most likely will increase as
newer and more powerful forms of digital communication define the collection, storage and transmission of PHI, ePHI and PII.
Successful businesses are always ahead of their time. Witness Microsoft, FedEx, Starbucks, Apple, Amazon, Google: entrepreneurs
who invested in new products and services based on predictions of social, economic, demographic and future business trends.
If we agree that HIPAA-HITECH is not going away, that its potential impact on law firms, court reporters and other “business
associates” will expand in the future, then making the investment to become compliant seems like a good business decision.
Compliance becomes a competitive advantage that sets one firm apart from the others.
On September 13, 2013, court reporting firms, due to the fact that they are entrusted with PHI, ePHI and PII, were designated as
“business associates” to their law firm clients. The decision was made for Streski Reporting & Video Service and its sister company,
Axiom Trial Presentations, to achieve HIPAA compliance. New operational procedures and employee training were implimented.
Hardware and software were upgraded to include data encryption for all computers, servers, and electronic transmission of data
and communications. This investment is both defensive and offensive: defensive to obtain data breach insurance and protect the
company’s assets; offensive to better position the company as a valued litigation support partner to our clients.
A path to navigating the regulatory maze and initiating a compliance program might include these steps:
1. Assign a person or committee to read, research, query other law firms, attend webinars to gather information and write a
report for senior management;
2. Digest this information as a basis for creating a business plan with financial projections;
3. Secure any financing that is needed;
4. Create and fill a position of Security Officer to oversee compliance;
5. Implement written “best practice” policies;
6. Train employees, associates and vendors;
7. Obtain Business Associate and Employee Agreements;
8. Continue due diligence and monitoring;
9. Re-certify each year.
We need to develop a “culture of compliance,” assess our risks -- which are growing every day -- and eliminate the possibility
that we receive a wake-up call in the form of a breach. Taking proactive steps lessens the chance of being named in a lawsuit, of
being charged with stiff fines merely because of indifference, and maintains integrity of brand.
Melania D. Streski is a Registered Professional Reporter, Certified Legal Video Specialist, Certified LiveNote Reporter and holds a
Certificate in Trial Presentation from the National Court Reporters Association. Melania has been the CEO and owner of Streski
Reporting & Video Service and Axiom Trial Presentations, divisions of MDSTRESKI, LLC for 44 years. Offices are in Wheeling,
Morgantown, Martinsburg, Charleston, WV; Pittsburgh, PA; Steubenville, OH. E-mail is mstreski@streski.com.
HIPAA – The 8,000 Pound HIPPO in the Room
Make it work for you, not against you.
By Melania D. Streski, MDSTRESKI, LLC

17. 17
West Virginia Consumer Protection
Changes Don’t Necessarily Track Federal Law
By Russell D. Jessee, Steptoe & Johnson PLLC, Charleston, WV
Governor Tomblin recently signed into law S.B. 542 that amends several debt servicing and collection
provisions of the West Virginia Consumer Credit and Protection Act (the “WVCCPA”). The amendments,
which variously take effect in June (unless otherwise specified) and September (when specified, such as for
the revised limitations periods), significantly affect how consumer claims against creditors and debt collectors
will be litigated in West Virginia.
The initial proposed legislation amending West Virginia’s debt collection laws attempted to mirror
significant portions of the Fair Debt Collection Practices Act, 16 U.S.C. § 1692 (the “FDCPA”). Typically,
most creditors rely on the restrictions found in the FDCPA to develop their applicable policies and procedures
as well as training programs to ensure compliance with debt collection laws. Those FDCPA-based policies
normally would be sufficient for a creditor to collect debts lawfully in most states. Policies geared toward
complying with the FDCPA, however, are not sufficient to ensure compliance with the WVCCPA, even
with recent amendments.
In most respects, the FDCPA and the WVCCPA are remarkably similar. Both statutes contain prohibitions on harassment and
abuse, prohibitions on deceptive or misleading representations, and prohibitions on certain unfair practices. Most notably, the WVCCPA
and the FDCPA both contain prohibitions on contacting consumers represented by attorneys and contain similar remedy provisions.
Despite their similarities, there are unique differences which create substantial challenges for creditors attempting to collect a
debt in West Virginia. For example, a creditor collecting its own debt is not deemed a debt collector under the FDCPA. Language
was proposed that would have included the same exception under the WVCCPA, but that language did not survive. Due to that
language not surviving, the WVCCPA still defines a creditor collecting its own debt, including a bank, as a debt collector. W. Va.
Code § 46A-1-101.
Another significant difference is the definition and interpretation of the word “communication” as used in the two statutory
schemes. West Virginia Code § 46A-2-128 provides that a debt collector is not permitted to communicate with a consumer who is
represented by counsel. Specifically, that section states that “[n]o debt collector shall use unfair or unconscionable means to collect or
attempt to collect any claim . . . the following conduct is deemed to violate this section: . . . (e) Any communication with a consumer
whenever it appears that the consumer is represented by an attorney and the attorney’s name and address are known, or could be easily
ascertained.” The FDCPA similarly prohibits communication with an attorney-represented debtor. See 15 U.S.C. § 1692c(a)(2).
The WVCCPA does not define “communication,” while the FDCPA defines “communication” as “the conveying of information
regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2) (emphasis added). Relying on the
FDCPA’s definition, courts ruling on claims under that act consistently have concluded that leaving a message or merely attempting
to call an attorney-represented debtor (as shown by the creditor’s call log) do not violate the FDCPA.
Unlike courts construing the FDCPA, state and federal courts in West Virginia construing the WVCCPA have rejected arguments
that a “communication” has to be the actual conveyance of information in an effort to collect a debt. These courts have focused on the
WVCCPA’s phrase “any communication” to find that causing an attorney-represented debtor’s phone to ring violates the WVCCPA.
The recent WVCCPA amendments provide additional guidance on the use of the word “communication” in that act. Now,
“regular account statements” are excluded as a debt collection communication that could be deemed a violation. W. Va. Code §
46A-5-128(e) (2015). Similarly, required notices, such as foreclosure notices, no longer are prohibited communications. W. Va.
Code § 46A-5-128(e) (2015). The West Virginia Legislature, however, did not address whether unanswered calls and certain loss
mitigation communications could be deemed WVCCPA violations. To date, West Virginia courts typically have concluded those
types of communications would violate W.Va. Code § 46A-2-128(e).
Another significant difference between the two acts is the potential exposure between the FDCPA and WVCCPA. Under the
FDCPA, courts have universally held that the FDCPA remedies provision unambiguously limits damages to $1,000 per action. A
similar provision limiting a debt collector’s exposure to $1,000 per action was introduced as an amendment to the WVCCPA, but
the amendment did not survive to the enacted version of the bill. Instead, the Legislature amended the WVCCPA’s debt collection
penalty to a flat $1,000 per violation. Previously, the per-violation penalty ranged from $100 to approximately $4,800. Now, causing
a debtor’s phone to ring on ten separate occasions after notification of attorney representation exposes the creditor to $10,000 in
penalties. Previously, the exposure would have ranged from $1,000 to $48,000.
In summary, while West Virginia’s debt collection laws moved closer to similar federal laws, distinct differences remain that
create traps for unwary creditors and other debt collectors.

18. 18
Insurance Substantive Committee Update
By Charity K. Lawrence, Spilman Thomas & Battle, PLLC, Charleston, WV
At our committee’s March meeting, Mark Carbone of Carbone & Blaydes, PLLC, presented an excel-
lent Continuing Legal Education seminar to our attendees on the topic of hearings for first and third party
bad faith claims in the West Virginia Offices of the Insurance Commissioner “WVOIC”. Mr. Carbone has
served as a hearing examiner for the WVOIC since 2011 and was able to offer helpful tips for defense at-
torneys on how to navigate proceedings with the WVOIC, including the implementation of best practices
and the avoidance of common mistakes. His knowledge on this topic was invaluable for those of us who
are seeing an increasing amount of litigation in this forum. The feedback from those who attended this
seminar has been excellent.
Our next meeting has been rescheduled for June 3, 2015 at 12:00. During this meeting, Rudy Martin
of Jackson Kelly PLLC will present on the topic of the use of expert witnesses in bad faith cases in West
Virginia. As a practicing attorney who also testifies as an expert witness in these types of cases, Mr. Martin
will discuss his experiences with different courts throughout the State in regard to the testimony that can be presented. All members
of the insurance substantive committee are encouraged to attend. The meeting will be held in the Charleston office of Spilman,
Thomas & Battle, PLLC. For those who cannot attend in person, instructions for telephonic attendance will be distributed via email.
If you have any questions or if you would like to join our committee, please email me at clawrence@spilmanlaw.com
2015 Spring Tech Tip: E-mail Nightmares
By John Meadows, Steptoe & Johnson, PLLC, Charleston, WV
E-mail is, undeniably, one of the most important developments of this new digital age and has changed
the legal profession significantly. When I entered the practice of law, I still received paper memos on my desk
telling me I’d missed a call, and, for instant communication, fax was still the default option. Some clients were
slow to adopt e-mail as an accepted communication standard.
It didn’t help that e-mail addresses are also somewhat complicated. There is no uniform format for addressing,
and we rely on technology to help us remember that. Further, our addresses really aren’t that unique, especially in
the legal world. My surname is John, and based on 15 seconds of internet research, that is still the most common
male surname in the English language. It’s simply not uncommon to be involved with a case where there is
more than one lawyer named John or Bill or Tracey. It’s also not uncommon for firms and clients to use similar
naming systems. I’m usually identified as “john.meadows@domain.com” or “jjmeadows@domain.com” or
jjm@domain.com, but so are lots of others, so a Jennifer J. Miller may also have an address quite similar to mine.
E-mail is also instant and forever. Unlike a letter that you write, read, and then tear up (or never send – see Harry S. Truman’s
proclivity for writing nasty letters and not sending them), once you click “Send”, it’s generally a done deal. There is no going back. Even
if it doesn’t “send,” the server likely will have a copy somewhere. Probably forever.
So, because e-mail can last forever, and it’s clear that we have similar names and our firms/clients use similar naming conventions for
e-mail addresses, the following tips/tricks/warnings are pertinent and important and are sometimes neglected by even the most-seasoned
legal practitioners.
1. Don’t believe in “Recall”ing a Message
MS Outlook and many other e-mail providers allow users to “Recall” an already-sent message. This actually can work for large
e-mail systems at large companies, where the message is being sent only internally and where the recipients haven’t actually opened the
message first.
Notwithstanding this, imagine the story (it’s real) – you sit through an hour-long phone conference with a client where you discuss
all the case’s liabilities and advantages, and you leave the client with a few options and decisions to make. In an hour, you get an e-mail
from the client, explaining his thoughts on each salient legal point and how they would defend each. The client carefully handles each and
every point, and then, without any care at all, copies opposing counsel in the long CC list. Yes, opposing counsel. Well, to his defense, the
person he wanted to copy was named Bill (my partner) and opposing counsel was also named Bill, and the other Bill now had our full
game plan for the case. It was no less troublesome than the CSA losing Gen. Order No. 191 in advance of the battle of Antietam.
I called the client right away. The client contact listened and told me, in a slow southern drawl: “I know how to fix this – I went to
training on this.” So, about three minutes later, we all received the “Client would like to Recall [this message]” e-mail, which, of course
DOES NOT actually work when the recipient is outside your company/network and is already on someone else’s server. When the message
left that corporate office in Alabama and hit my server in W. Va., no polite “Recall” request would save the day. So, I called the client
back, explaining that the message was still out there, and he tried to explain to me, slowly and gently, as to a child, that the message was

19. 19
“Recalled” and therefore did not exist anymore. He didn’t believe me until the “other” Bill, my opposing counsel, called and said: “I’ll
try and forget what I’ve read, and I deleted the e-mail, but what was that all about???” Try and forget. I keep trying to forget.
Don’t use Recall, and don’t trust that it works. To make matters worse, if you do accidentally send something you shouldn’t have,
the “Recall” effort actually highlights that error to users who’ve already received the message telling them that they might want to see
what was changed and why, so, consider that too when deciding how to handle the mistake.
2. Be very careful with Reply All
Same song, second verse. Reply All really is great. One click and all those carbon-copied folks are automatically included. How
neat! However, therein lies the rub. Once you start using Reply All, you might forget who is in your CC or Sender list. You stop paying
attention and are less vigilant about who is in your e-mail list. This is dangerous ground and you should avoid it.
First, the story. Same Alabama client, same case. In this next e-mail gaffe, early in this matter, one of my partners had a habit of
drafting wonderful e-mails to opposing counsel and would BC (Blind Copy) our client on those e-mails. So, what could go wrong?
You guessed it, the client decided to write my partner back and tell him about some additional issues that he didn’t raise in the e-mail to
opposing counsel, and the client used REPLYALL which promptly copied the original sender – opposing counsel. That’s right, for the
second time in a couple of weeks, Bill (my opposing counsel), called and said: “What’s up?; I continue to try and forget these e-mails,
but it’s getting harder now.”
Yes, I called the client, and this time there was no fight over recalling the message. We all knew opposing counsel had read it (and
written to us), but the client was adamant in stating (and I kid you not), “But, I didn’t type his name in the message this time!”, but,
unbeknownst to my otherwise charming client, Reply All did it for him.
As a rule, I never, ever copy a client on any communication to opposing counsel. I forward an e-mail I’ve sent to opposing counsel
to the client, and if the client decides to Reply All, I am the only “All” in the equation.
Extra Tip: By the way, in most e-mail systems, you can disable Reply All or set your e-mail program to warn you if you are about
to Reply All.
3. Autofill is just as dangerous
Both of the above scenarios involved a computer program (in my case, MS Outlook) attempting to help my client to not forget
something (the correct Bill’s address or the whole CC list), and caused me lots of concern watching my client give our playbook to
opposing counsel. Autofill (or Auto Complete) is a feature where your e-mail program decides, upon the strength of one or two letters
you type, who it is that you want to e-mail. You start typing the name and lots of options pop up. If you frequently send e-mail to certain
users, they will often be at the top of the list. The problem, of course, is when you are accustomed to Autofill helping you fill in the list
and you can end up selecting and e-mailing the wrong person. Remember my partner Bill versus opposing counsel Bill, and the fact that
John is the most common name in our language?
The story: opposing counsel in a matter once e-mailed a large group of us (there were twenty-two defendants in the case) and, instead
of copying a co-counsel in Wheeling, she copied her roofer in St. Albans. The roofer had a similar e-mail address and clearly, Autofill
had gotten the better of opposing counsel (not Bill this time). Problem is, with twenty-two recipients in the CC list, no one caught it – that
is, not until fifteen e-mails had been exchanged, with everyone happily Reply-ing All and continuing to include the roofing contractor’s
e-mail address. Obviously, when the roofer eventually used ReplyAll to tell us we had the wrong guy, we all realized that we had sent all
sorts of information to someone who wasn’t authorized to receive it. There wasn’t a Gen. Order No. 191 in this batch, but it was still quite
embarrassing. The only positive outcome was that I found a really competent roofer in St.Albans who did a great job with my house, too,
and I already had him in my e-mail address list. Seriously.
4. Out-of-Office messages
Finally, I know many companies (and law firms) promote use of these messages. Let’s see - I’m going to Belize for a month and I
need everyone who e-mails me to know that I’m in the third world and may not be able to get back to them right away. The solution – I
create an Out Of Office message that tells everyone who sends me an e-mail: “Hi, this is John and I’m in Belize with limited access to
e-mail. I’ll call you if I get back, if you’re lucky” or something similar. Problem is, do you really want everyone to know you’re in Belize?
Do you want your client and opposing counsel to know that you’re potentially asleep at or absent from the switch, just sitting on the beach
with a drink containing a small umbrella?
Even more troubling, lots of folks forget to turn off those messages. In that case, you have the situation where someone isn’t sure if
you’re actually available or not. Availability is important in our profession.
That being said, perhaps the most troubling possibility though, is the notion that some clients will get your message and then just
e-mail some other lawyer (at some other firm) because they want to get an e-mail response from someone right away. If I’m really going to
be out of service on my e-mail for a long period of time, I do let my clients know.And, if I am otherwise traveling but am still going to be
able to help them, whether I’m in Fayetteville or England, I just respond timely and don’t generally fiddle with an Out of Office message.
Your practice (and your own company/firm’s rules) may vary, but as long as you have considered the consequences and possibilities, it
will help avoid serious trouble in your own practice.
As the days grow longer and less cold, I hope that all of you will be careful out there and get to know your e-mail program.