News

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.

I hope all of you are doing well in dealing with the Covid - 19 pandemic and the bombardment of election commercials, the latter of which has a light at the end of the tunnel. Depending on your party affiliation, the light may be sunshine or a locomotive headed at you full speed!  The good news is that election season is almost over . . . for this year.

We cannot help you with the election, but the NCADA is focusing on how it can help its members, their firms, and their practices. We want to hear from you!  Please let us know what the NCADA can do to increase the value of your member experience. Traditionally, we have provided excellent continuing education and networking opportunities. We are doing our best to continue this tradition in the present virtual world, and we are open to suggestions and increased membership participation.  Please contact Lynette Pitt, Jennifer Edwards or Allen Smith and let us know what we can do to make your NCADA experience even better.

At our annual Fall Seminar, we had an excellent panel of for managing partners who discussed how firms are coping with the pandemic. The association has also hosted many webinars for CLE credit, several of which have been complimentary to members due to the generosity of our sponsors.

Which leads to my next topic: sponsors. Bar organizations depend on sponsors, and NCADA is fortunate to have so many loyal and generous sponsors. Please remember to use our sponsors and thank them.   

Our Sponsorship Committee is looking for members to join the committee. This presents an excellent opportunity for members to get involved.  If you are interested, please contact the committee chair, Melissa Walker or Lynette Pitt.  

The NCADA has a history of encouraging and promoting diversity and inclusion. In 2019, we won the DRI Rudolph A. Janata Award for the second time. But we do not want to rest on our laurels. The committee continues to be an important focus of the NCADA, and it welcomes additional members.  This also presents an excellent opportunity for members to get involved.  If you are interested, please contact the Diversity Committee Chair, Denaa Griffin or Lynette Pitt.

When I next write you, we will be approaching Thanksgiving.  I wish you well between now and then.

A Note from NCADA President, Allen Smith

I can think of reasons to love purple:  football (think Minnesota Vikings, ECU Pirates,  and TCU Horned Frogs), music (Jimi Hendrix’s classic, “Purple Haze,”  and the band Deep Purple), Easter, lollipops, rainbows, Crayola Crayons, Rockies, and leisure suits.  I probably lost you with the leisure suits, as purple ones were particularly ugly.

BUT purple is not a good color for a state during election years. Sure, we North Carolinians get lots of attention, but we get too much attention.  About the only good thing about COVID-19 has been no national political convention in my hometown of Charlotte, USA.  One is enough, if not too many, for a lifetime.

We the people who live in the purple states like North Carolina get force fed the commercials and commercials and commercials and still even more commercials for the race for president.  If one candidate wins, the country will fall apart at its seams.  If another candidate wins, the country will experience its greatest moments in history.  If the other candidate wins, riots and looting will never end.  If one candidate wins, the country will be safe.  Or at least all the TV commercials have said so - and I have seen plenty by both sides.  Many have been back to back!  As of the day I write this, we will get pummeled with commercials for another six weeks.  And with the talking heads on TV predicting days to count all the votes, the commercials may continue past election day--or new types of commercials will appear.

How does my rant about seeing way, way too many ads for the presidential election apply to the practice of law?  You learn what not to do.  Do not call your opponent names.  That may work (or it may not) in a political race, but it will come back to bite you in the practice of law.  Do not denigrate the other side; show the opposing counsel and party respect in person.  You do not have to be friends, but you have to work together to get through the litigation process.  Do not mislead the court.  When you are before the court, have facts and law to support your arguments.  Only promise jurors or the court what you can deliver.  Politicians lose credibility and win all the time.  If a lawyer loses credibility with jurors, the lawyer is likely to lose the case. If a lawyer loses credibility with the court, the lawyer hurts the current client and possibly future clients.

I conclude by urging you to vote.  The members of our organization have a wide array of opinions and political beliefs.  However, I think that everyone agrees on the importance of casting a vote.

By Allen Smith, NCADA President

NCADA and President Allen Smith are pleased to introduce a series of columns to be included in The Resource over the next year on “What it means to be a defense attorney.”  

We are very fortunate that some of the recent winners of the Elster Award and Award for Excellence in Trial Advocacy graciously agreed to share their impressions over the remainder of the 2020-21 NCADA a year.

In writing the first column on the subject, I feel like a Double-A baseball player batting leadoff in a Major League Baseball All-Star Game.  (Not knowing whether we will have a college football season, and I sure hope that we do, I am reticent to use a football analogy like kick-off.)   

When I talk to most defense lawyers, I hear a universal theme: there is no feeling better in the profession than winning a trial. I share that sentiment and have been fortunate enough to experience the so-called “thrill of victory” many times.  It is hard to beat the positive reinforcement of receiving compliments from several jurors after a trial. However, this is an important but small part of being a defense attorney.

As I have grown older (but not yet become “old“ – that will always be 10  years away), I recognize that being a complete defense attorney is much more than winning trials. Having the tools and confidence to win trials is important. These skills are valuable in helping you perform the most important role of a defense attorney: recognizing the best manner to resolve the client’s case and achieving it.  Sometimes, the best resolution is through a trial, and we all look forward to those cases.  However, statistics show trials are a rarity.  In some cases, the best resolution is settling the case before it goes into litigation.  Some of my most grateful clients are from cases that settled before the opposing party filed a lawsuit.  These clients viewed the pre-litigation resolution as a home run.  For the majority of cases we have, the best resolution involves gathering more facts or evidence through the litigation process, determining the value of the case, and settling.  The key is to make sure the attorney and client are on the same page. 

The “five tool“ (we do have a baseball analogy theme going!) defense attorney develops the knowledge and skill to recognize the best way to resolve the case; the confidence to make recommendations and execute a litigation plan; and the temperament to work with the clients, the opposing attorneys, and the courts to achieve the goal.  Developing your litigation skills does not occur over night.  Doing so requires patience, dedication, and a long-term plan.  I doubt that any part of this column is eye-opening to my fellow defense attorneys regardless of years of practice.      

I hope that each of you takes the time to read the columns from our exceptional defense attorneys in the upcoming issues of The Resource. Regardless of your years of practice, you are bound to pick up some valuable information.  Please also be sure to thank these columnists; we are quite fortunate they are willing to share their wisdom.

Over the past 24 hours, the eastern Piedmont and Coastal areas of our state were hit with devastating rain, wind, and in some areas, tornadoes. The impacts of Hurricane Isaias will be long lasting, and while property can be replaced, the lives lost cannot. 

Please keep our members, their family members, and the communities impacted by the storm in your thoughts and prayers. The North Carolina Coast is still in the process of recovering from Hurricane Florence, and this latest storm will only add to the struggles faced by the residents of these areas.  

Please reach out to your friends, family members, and fellow NCADA members in the impacted areas of our great state and let them know they have our support, attention, and prayers. 

Allen Smith
NCADA President 2020-2021

As the Covid-19 pandemic has dragged on and on and we have learned of more and more postponements and cancellations, my energy level has been depleted at times. Of course, this is normal in the practice of law and most professions; we all go through our peaks and valleys during the course of a work year. 
 
However, this year has been different--finding diversions has been more difficult. One thing I look forward to each year is taking a trip with my two sons, ages 24 and 27. In the summer of 2018, we had a weekend visit to Boston that featured visits to the Harpoon and Sam Adams breweries during the day, an Eagles concert in TD Garden on Friday night, and a Foo Fighters concert in Fenway park on Saturday night. My younger son even made it to the front row about midway through the concert. In April of 2019, the Smith boys joined 80,000 other fans in MetLife Stadium to attend Wrestlemania 35. (Yes, there really were 80,000 fans there!) This summer, we had planned a trip to Chicago, and that fell through.  We had to find an alternative trip, so Nashville and Knoxville serve as substitutes for Chicago.
 
What does this have to do with practicing law?  We all need to find ways to recharge our batteries. This year, we’re having to be more creative.  Our levels of interaction with others are much lower because of restrictions on live appearances in court, at depositions, and at mediations.  Attorneys need to recharge their batteries for the short term and long term. In the short term, call your clients, fellow defense counsel, or opposing counsel more often instead of sending just emails. Restaurants are open, so you can take a colleague to lunch. Walk up and down the stairs of your office or around your block if you’re working from home. You can even do a business call while doing some exercise. Little things like this can help attorneys get through the day. For the week, make sure you set aside some time for your family, your friends, and yourself.  
 
Having some type of exercise routine is probably more important than ever. This helps in the short term and long term. Ideally, you can find somebody to join you for the exercise.
 
Our profession and country will get through this pandemic. At some point, trials will resume and Wrestlemania will be back with 80,000 fans. Take care of yourself.
 

RALEIGH – Chief Justice Cheri Beasley has issued new emergency directives in response to the COVID-19 pandemic that require the wearing of face coverings inside county courthouses and planning for the resumption of jury trials.  “I have issued several emergency directives calculated to reduce the spread of COVID-19 in North Carolina's communities,” said Chief Justice Beasley. “Consistent with the Governor’s recommendations and the clear guidance of public health experts, requiring face coverings in courthouses is necessary to keep our courts open while protecting court personnel and the public.”

Chief Justice Beasley announced that jury trials in North Carolina courts will be delayed through at least September, and has directed senior resident superior court judges to develop comprehensive plans for the eventual safe resumption of jury trials in their districts. Each Jury Trial Resumption Plan must ensure that all court operations are in compliance with each of the Chief Justice’s emergency directives and must be informed by the Best Safety Practices distributed by the North Carolina Administrative Office of the Courts.

Each Jury Trial Resumption Plan must include:

• A confirmation that each court facility and any alternate facility to be used for court operations is in compliance with each of the Chief Justice’s emergency orders in response to the COVID-19 outbreak;
• A plan for summoning and excusing jurors, which allows for as much of the process to be handled remotely as possible;
• A plan for conducting voir dire with social distancing;
• A plan for conducting trials with social distancing in the courtroom for all court participants, including the jury, and in the deliberation room;
• A plan for daily screening of jurors, court personnel, attorneys, witnesses, and parties for COVID-19 exposure or infection;
• A plan for making face coverings available to jurors, court personnel, attorneys, witnesses, and parties;
• A plan for responding in the event that a juror, defendant, attorney, witness, judge, or other courtroom personnel becomes symptomatic, tests positive for COVID-19, or has a known exposure to someone who has tested positive for COVID-19 during the trial.

Each Jury Trial Resumption Plan must be approved by the following officials in the county:

• The chief district court judge;
• The clerk of superior court;
• The district attorney;
• The public defender, or a criminal defense attorney chosen by the senior resident superior court judge in districts without a public defender;
• The sheriff; and
• The public health director.

N.C. Defense Fund Endorses Judicial Candidates for 2020 Appellate Races

Raleigh, NC, July 13, 2020 --- The N.C. Defense Fund, the political action committee of the North Carolina Association of Defense Attorneys, endorses the following candidates seeking seats on the North Carolina Supreme Court and Court of Appeals:

For Chief Justice of the North Carolina Supreme Court, the N.C. Defense Fund endorses both

              Cherie L. Beasley and Paul M. Newby for re-election to the Court.             

For Associate Justice of the North Carolina Supreme Court, the N.C. Defense Fund endorses

For Seat 2:  Lucy N. Inman for election to the Court.
For Seat 3: Mark A. Davis for election to the Court.

For Associate Judge of the North Carolina Court of Appeals, the N.C. Defense Fund endorses:

For Seat 4:  Patricia P. Shields for election to the Court.
For Seat 5:  No Endorsement
For Seat 6:  R. Christopher Dillon for re-election to the Court.
For Seat 7:  Reuben F. Young for election to the Court.
For Seat 8:   Jefferson G. Griffin for election to the Court.

The NC Defense Fund made the decision to endorse each judicial candidate based on the following criteria:

•Substantial legal experience in and demonstrated understanding of civil litigation and issues recurrent in defense of claims;

•A willingness to impartially apply the statutory law and rules as written and the common law, including the application of affirmative defenses, and the granting of dispositive motions when warranted;

•A recognition of the legislature's exclusive role to enact statutes and the Court’s role in interpreting existing common law and statutes in a fair, consistent and predictable manner with respect for prior court rulings as compelled by stare decisis;

•Exemplifying a high level of independence and integrity in applying the law impartially and in compliance with judicial standards and the Rules of Professional Conduct.

The N.C. Defense Fund is the political action committee of the North Carolina Association of Defense Attorneys. The North Carolina Association of Defense Attorneys [NCADA] is a professional association for lawyers and paralegals defending the interests of individuals and businesses in civil litigation. Current membership stands at over 850 attorneys and paralegals from across the State.

 

The North Carolina Association of Defense Attorneys (NCADA) held its Virtual 43^rd  Annual Meeting the week of June 9-12, 2020, in Asheville, NC, swearing in a new slate of Officers and Directors at the close of the meeting.

Allen C. Smith assumes the position of President. Smith is a partner with Hedrick Gardner Kincheloe & Garafalo, LLP in Charlotte. He is the leader of the Trucking and Transportation Practice Group and devotes much of his time to defending serious personal injury and wrongful death claims associated with truck accidents and major vehicle negligence. He also defends product liability, construction defect, and premises liability claims. Smith obtained his J.D. from the University of North Carolina School of Law in 1992. He previously served a three-year term on the Board of Directors and one year as Secretary.

F. Lach Zemp is immediate Past President of the Association. Zemp, a partner of Roberts & Stevens, P.A., has over 25 years of experience trying cases and representing a variety of professional, outdoor-recreation, industry, and business interests in state and federal courts. He obtained his J.D. from Franklin Pierce Law Center in 1990.

Sara R. Lincoln is President-Elect. Lincoln is a partner with Lincoln Derr, PLLC in Charlotte. She has an active trial practice ranging from medical malpractice defense to complex business litigation. Lincoln obtained her J.D. in 1993 from the University of Akron School of Law, magna cum laude. She has previously served a three-year term on the Board of Directors , and was chair of the Association’s Women Litigators Committee and the Medical Malpractice Group.

Lincoln was instrumental in securing engaging and informative content and speakers for NCADA’s first Virtual Annual Meeting, including Michael Reddington of InQuasive and Jennifer Schenk, the Physician Counsel. Other panelists and speakers discussed and shared what made their defense practices successful. The change from a traditional in-person annual meeting to a virtual meeting was a challenge Sara met head-on, ensuring the meeting and the transition were successful and seamless.

Ashley K. Brathwaite was elected Executive Vice President. Brathwaite practices with Ellis & Winters, LLP. Her practice is divided between the representation of health care providers, product manufacturers and distributors, and others facing allegations of liability for a catastrophic personal injury. She obtained her J.D. from Campbell University School of Law in 2005. Brathwaite has served on the Board since 2015 and previously chaired and co-chaired the Women Litigators Committee.

JD Keister was elected Treasurer. Keister Practices with McAngus Goudelock & Courie, LLP in their Raleigh office. He routinely engages in the representation of parties in construction, professional liability, coverage and bad faith, real estate litigation, catastrophic loss, transportation and automobile litigation and commercial litigation, as well as first party defense for insurance carriers. JD’s construction practice includes the representation of contractors, subcontractors, designers, developers and their insurance companies. His professional liability experience includes the regular representation of architects and engineers, attorneys, real estate brokers and agents, insurance brokers and matters that stem from director and officer liability. JD obtained his juris doctorate from Ohio Northern University Pettit College of Law (JD). He also serves as NCADA’s Chair of the Construction CLE Committee.

Chris Kiger was re-elected Secretary. Chris practices with Smith Anderson, LLP. His focus is in the areas of products liability, mass tort, and commercial litigation. He has significant experience representing manufacturers, insurers, and other corporate clients in both state and federal courts, as well as in multi-district litigation. He has successfully handled the defense of litigation involving a broad array of automotive, industrial, consumer, and medical products.

The NCADA welcomed the following new members to the Board of Directors to serve a three-year term ending in 2022:

• ·       Patrick Flanagan, Cranfill Sumner & Hartzog, LLP
• ·       Tracey Jones, Teague Campbell Dennis & Gorham, LLP
• ·       Kimberly Marston, Brooks Pierce, LLP
• ·       Daniel Nunn, Caudle & Spears, LLP
• ·       Brady Yntema, Goldberg Segalla, LLP

About the NCADA: North Carolina Association of Defense Attorneys (NCADA) is a professional organization of nearly 800 attorneys and paralegals who devote a majority of their time representing the interests of business and individuals in civil litigation. For more information about the NCADA, please contact (919)239-4463 or visit www.ncada.org.

NCADA is pleased to announce the recipients for the J. Robert Elster Award for Professional Excellence and the Award for Excellence in Trial Advocacy for 2020.

Patricia P. Shields is this year’s recipient of the J. Robert Elster Award for Professional Excellence, which recognizes contributions to the organized Bar as a whole and to their community. Shields is a partner with Hedrick Gardner Kincheloe & Garofalo, LLP practicing in the firm’s Raleigh office. Shields has earned a reputation as a highly-experienced trial attorney who represents her clients with the highest level of competence and skill, honors the system of justice through outstanding preparation and the keenest of intellects, and maintains professional and courteous behavior toward all. Her litigation practice includes complex commercial, malpractice and professional responsibility, products liability, and civil rights claims.

David N. Allen will receive this year’s Award for Trial Advocacy and is the third recipient of this Award recognizing members who are eminently qualified to advocate for clients in state and federal courtrooms. Recipients of this Award are considered by the NCADA as among the finest trial lawyers in the state. Allen is a partner with Nelson Mullins Riley & Scarborough practicing in the firm’s Charlotte office. Allen represents a broad variety of clients in his trial practice. He has been trying lawsuits for more than 30 years with close to 100 juries empaneled during that time. Allen is a recognized leader for his outstanding commitment and contributions to trial and appellate advocacy – a true courtroom lawyer.

The Awards will presented at a later date this year. Please join us in congratulating Patricia Shields and David Allen as we recognize both as leaders in the NCADA and the civil trial bar.