I hope all our members and friends are enjoying spring as society opens back up. I love spring and summer, and this spring has been more welcome than most.
This year has seen efforts by the plaintiffs’ bar to end the doctrine of contributory negligence in North Carolina. Their efforts have come through the judiciary and the legislature. In the case of Saunders v. Hull Property Group, LLC, the plaintiff filed a petition for discretionary review with the goal of having the North Carolina Supreme Court do away with the doctrine of contributory negligence. The NCADA submitted an amicus brief to the NC Court of Appeals in 2019 and conditional motion for leave to file an amicus brief to the NC Supreme Court in 2021. The Court of Appeals declined to end contributory negligence, and the Supreme Court denied the plaintiff's petition for discretionary review.
Prior to the dismissal, the NCADA put together a committee to study contributory negligence and comparative fault. The North Carolina Advocates for Justice seem determined to bring an end to our current system one way or the other. As it stands, North Carolina is one of four states (in addition to Alabama, Maryland, and Virginia) and the District of Columbia that still has a pure contributory negligence system as opposed to comparative fault. Our committee is not advocating for a change of the current law. Instead, we want the NCADA to be ready if legislation is introduced to abolish contributory negligence. Specifically, the committee is researching the types of changes we can accept.
Shortly after our first meeting, a state senator introduced Senate Bill 477, the Victims’ Fair Treatment Act. From our perspective, the bill was a non-starter. It ends contributory negligence, but does not end joint and several liability. As a result, we joined the North Carolina Chamber of Commerce, and a long list of business-oriented groups, in a letter dated April 12, 2021, to the NC Senate opposing this bill.
Our committee is working on a position statement addressing key issues. If there is going to be a change, there needs to be fairness to both sides, something that is not accomplished with Senate Bill 477. We will submit the proposed position statement to the board by the annual meeting and include principles that must be included if there is a change. The committee welcomes questions, comments, and suggestions from our members.
The pandemic brought tons of changes and challenges, but it also brought opportunity. In person meetings have been put on hold yet we have been able meet virtually via Zoom and a multitude of other platforms. A lot of great conversations and education have occurred online during the past 13 or more months. Did you know you have platform available to extend these conversations?
The NCADA’s website contains an online resource that connects the entire membership for discussion of trending issues, experts, recent case law, CLE, and any other topic of interest. The Member Network are discussion forums designed to allow NCADA members to easily engage, interact and brainstorm with each other from anywhere at any time by simply logging onto the NCADA’s website and using the forums.
This members’ only resource is accessible through the website and contains discussion forums for all our practice groups and for young lawyers, women litigators, paralegals, and the diversity committee. Members can choose to be a part of any or all of these forums to discuss any issue of interest with other members that are involved in the same practice groups or committees.
How do we access these forums? It’s easy. Here’s how:
To change your forum subscription settings, go to the Email subscriptions page within your member profile and click the Edit Profile button. Additionally, in the forum subscriptions section, you can unsubscribe from forums and topics and change the frequency of forum update notifications. Do not forget to click 'Save' to save your changes.
Start a conversation today!
Recognize a colleague, mentor or peer you hold in high esteem for the J. Robert Elster Award for Professional Excellence and the Award for Excellence in Trial Advocacy this year.
Present and past members of the NC Association of Defense Attorneys are eligible for consideration as a possible recipient for one of these awards. Recipients will be recognized during the 2021 virtual Annual Meeting on June 11, 2021, and presentations given at the fall meeting in September to both 2020 and 2021 recipients.
Deadline for submission is Wednesday, May 5, 2021. Your letter of nomination should be addressed to Leslie Packer, Chair, Awards Committee, c/o Lynette Pitt, Executive Director, NCADA, 4030 Wake Forest Road, Suite 203, Raleigh, NC, 27610.
Learn more about the J. Robert Elster Award for Professional Excellence and the Award for Excellence in Trial Advocacy.
2020 Patricia “Tricia” P. Shields
2019 G. Gray Wilson
2018 Kenneth Kyre, Jr.
2017 Leslie C. Packer
2016 John S. Willardson
2015 Honorable Linda Stephens
2014 Harvey L. Cosper, Jr.
2013 James W. Williams
2012 Richard V. Bennett
2011 L. P. “Tony” Hornthal, Jr.
2010 Charles E. Burgin, Jr.
2009 Sam S. Woodley, Jr.
2008 Alan W. Duncan
2007 William K. Davis
2006 J. Donald Cowan, Jr.
2005 James D. Blount, Jr.
& Stephen P. Millikin
2004 Richard T. Boyette
2020 David N. Allen
2019 Dan J. McLamb
2018 Samuel “Sammy” G. Thompson
President Allen Smith shared a letter with leaders of North Carolina's General Assembly endorsing Governor Cooper's nominations to serve as Special Superior Court judges with designations to the Business Court.
NCADA endorses for reappointment the Honorable Adam Conrad and the Honorable Michael Robinson to the Business Court. Nominees Julianna Theall Earp and the Honorable Mark Davis are also endorsed.
Read the letter of endorsement here.
“The best way to persuade people is with your ears – by listening to them.” Dean Rusk
Think about some of your best trips to a doctor. What made the doctor stand out? I’m willing to bet that the doctor was an active listener. Litigators want to be known for their closing arguments, but one of the most important skills a lawyer can develop is the ability to be a good listener.
Listening carefully to the client at the outset of the case allows the attorney to get a good grasp of the facts so that he or she can develop a strategy for the case. Acknowledging what the client tells an attorney puts the client at ease. Some of my best lines during a closing argument have come from random comments by clients during the course of a trial.
Listening to witnesses is equally important. Most of us have some type of outline or list of questions. During depositions, it is easy to methodically walk through the questions. The attorney may get a good answer to a question early in the deposition that eliminates the need for asking a question later in the deposition. Don’t shoot yourself in the foot by asking that later question and allowing the witness to change the answer.
The NCADA also wants to listen to its members. How can we help your practice? Is there a topic for one of the coffee talks you would like to discuss? Do you have suggestions for topics for the Fall Seminar? If the answer to any of these questions is yes, please contact me, Lynette, or Jennifer.
The terms of five current members of the NCADA Board of Directors will expire in June 2021. Nominations for the five vacant Director positions are now being accepted to serve a three year term beginning at the close of the 2021 Annual Meeting through the close of the 2024 Annual Meeting.
Director responsibilities include:
To qualify for a position on the NCADA Board of Directors, the nominee should
Leadership opportunities in the NCADA’s Practice Groups are open for nominations. Members interested in the continued growth and relevance of the NCADA through its practice groups will be considered for leadership positions in the following areas of practice: Construction, Commercial, Employment, General Liability, Government, Medical Malpractice, Product Liability and Workers’ Compensation.
The following information should be included in the nomination:
1) Member Name, Firm, contact information and a brief biographical sketch;
2) Brief statement by the nominee of his or her availability and commitment to actively serve as a member of the Board, or as a practice group leader;
3) Brief statement why nominee would like to serve as a member of the Board of Directors, or as a practice group leader.
Persons interested in submitting a nomination may E mail or write to the Nominating Committee in care of Lynette Pitt, Executive Director (E mail: email@example.com; U.S. Mail: 4030 Wake Forest Road, Ste 203, Raleigh, NC 27609.)
Nominations must be received no later than Monday, March 29, 2021, 5 p.m.
A Note from NCADA President, Allen Smith
Weatherwise, February has been a less than ideal month – cold (as usual) and lots of precipitation. The good news is that we had some sun on weekends (particularly on February 20 and 21) and we are starting to see light at the end of this long tunnel known as the Covid-19 pandemic. Many of you participated in the Zoom presentation that Chief Justice Paul Newby on Thursday, February 18. Chief Justice Newby shared his reason for allowing the judicial districts to make decisions about when to re-open courts for in-person trials and hearings, and I hear some counties have started jury trials again.
If you have been a participant in a jury trial, we would love to hear from you. Did you have a difficult time getting enough jurors? Did the court push hard for you to use fewer than 12 jurors? How was the flow of the trial compared to before the pandemic?
Our Annual Meeting and Spring Program will be virtual again this year and is tentatively scheduled for June 10-12. We’re just not confident the world will be ready for big in person meetings by June. We’ll have more information and details soon!
But it is our hope that society will have somewhat returned to normalcy by September. So with that hope in mind, The NCADA is planning to return to live meetings this September for our Fall Seminar. It will be at the Omni Oceanfront Resort on Hilton Head Island from Sunday September 19 to Tuesday September 21. Yes, this is a little different than we’ve done it before, but we’re hopeful and looking forward to seeing everyone in person--I cannot wait! Details coming soon.
Speaking of the fall meeting, we would love to hear from members about topics they would like covered. There is no need to be bashful – please share your ideas!
I look forward to seeing some of you in a courthouse soon and more of you in HHI in September.
Happy New Year! 2021 is off to an interesting start. Hopefully, it gets better. . . real soon. We need a soft landing!
Instead of focusing on current events in the news, I’d rather highlight one of the important benefits that the NCADA provides its members – the submission of amicus curae briefs in appellate cases. Currently, the NCADA has a handful of cases pending in which it has submitted an amicus brief and/or petition for review. Over the past year, the amicus efforts have included issues involving class certification, contributory negligence, uninsured motorist/underinsured motorist coverage, medical malpractice, products liability, and workers’ compensation.
Several factors come into play when considering whether to participate in an amicus. First, the executive committee must believe the merits of the argument. Not all cases requesting NCADA participation are accepted. At some point in an attorney’s career, he or she will likely have to pursue an appeal despite recognizing the case is a loser from the start.
A second important factor is the benefit of our clients: the NCADA cannot advocate for the interests of one set of members’ clients against the interests of another. We sometimes see some meritorious requests that, for this reason, NCADA must decline participation.
Of equal importance is if a ruling in our side’s favor will benefit most of our members’ practices. NCADA does not take a case that will be averse to the interests of the members of our organization. For this reason, we have declined some interesting cases.
The NCADA is selective of cases approved for amicus; the legal issue on appeal must be of substantial interest to the NCADA and its members. NCADA has built a distinctive reputation and we are proud our participation in this process has an impact.
If you have a case in which you would like NCADA involvement, I encourage you to contact the current chair of Amicus Committee, Hon. Linda Stephens, to advise of the issue before the court, explain the importance of the issue, and share information about who will write the brief and/or petition. More information about how to request an amicus can be found on the NCADA website.
As we approach the end of this tumultuous year, I want to scream, “Goodbye, 2020! Leave me alone. 2021, you cannot get here soon enough.” More importantly, I want to wish all our members happy holidays and a safe new year. I hope the members who celebrate Christmas were able to see family—whether in person or virtually.
The new year brings a changing of the guard on the North Carolina Supreme Court. I would like to congratulate incoming Chief Justice Paul Newby on his new position as head of our courts. I would also like to congratulate incoming Justices Phillip Berger, Jr. and Tamara Barringer on their successful campaigns to obtain seats as associate justices on the North Carolina Supreme Court. I wish the best of luck to all of them.
Our state owes Chief Justice Cheri Beasley a debt of gratitude. She has provided the appellate courts of North Carolina with a high level of dedication. Additionally, Chief Justice Beasley demonstrated exemplary leadership during the Covid-19 crisis. With regard to the Supreme Court, I do not want to overlook Justice Mark Davis, who will also be leaving the bench. Like Chief Justice Beasley, Justice Davis has served on both levels of the appellate courts in North Carolina and distinguished himself as a jurist who understands the rule of law in the role of the courts in North Carolina.
The Court of Appeals will have two retirements of significance. Chief Judge Linda McGee has provided steadfast leadership to the Court of Appeals, particularly over the last six years when she has served as chief judge. Additionally, Judge Wanda Bryant is retiring after over 18 years on the Court of Appeals. Both judges have distinguished themselves and provided dedicated service.
For those of us who are used to regular courtroom appearances, 2020 was a frustrating year, particularly regarding trials. Our court system has shown agility in developing a WebEx system for motions hearings. While trials on a regular basis may still be several months away, we can see some light at the end of the tunnel. The trial court administrators throughout our state deserve appreciation and recognition. We as attorneys will continue to show patience as we work our way through first half of the year and the vaccination process.
It is my most sincere hope to see each of you in person during 2021. Here’s to better times ahead!
On behalf of the Board of Directors and dedicated staff, I wish all of our members and the legal community a very happy Thanksgiving. The year 2020 has been topsy-turvy at a minimum. However, from my perspective, we are a fortunate lot. The attorneys in our fields of practice fared better than the workers in many other industries. The litigation bar has been nimble in adapting to the Covid-19 pandemic and associated restrictions. In short, we still have work, and we can go about our jobs with relatively minor inconveniences.
The general election added to the topsy-turvy nature of 2020. It is hard to imagine a tighter statewide race than the one North Carolina had for Chief Justice of the Supreme Court. As of today (but before final certification by the NC State Board of Elections), Justice Paul Newby leads Chief Justice Cheri Beasley by the narrowest of margins (406 votes out of over 5.39 million votes cast). This close race demonstrates the importance of voting and is a testament to the dedicated service both Chief Justice Beasley and Justice Newby have given to our great state.
Best wishes to all for Thanksgiving.
North Carolina Association of Defense Attorneys
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