Defense Research Institute Annual Meeting

I will be traveling this week to the Defense Research Institute Annual Meeting. This will be the second time I have attended the meeting, and the first time I have done so as a full-fledged registration-fee payer (I snuck in last year). Although I have been a DRI member since early in my legal career, my substantive involvement in the organization began in earnest in 2004, when I first attended the DRI Nursing Home/ALF Litigation seminar. Since then, I have attended that seminar each year. Since March of 2005, I have also attended each of DRI's annual Medical Liability seminars. Both the Nursing Home/ALF Litigation seminar and the Medical Liability seminar are planned and presented by DRI's Medical Liability committee, of which I am a member. I had the pleasure of speaking at the Nursing Home/ALF seminar in 2007 and in 2010, and I served as Program Chair for the 2011 and 2012 Nursing Home/ALF seminars. I also served as Program Chair for DRI's 2013 Sexual Torts seminar, which was co-presented by DRI's Medical Liability, Insurance and Employment Law committees. In March 2015, I will be speaking at the 2015 Medical Liability seminar in San Francisco.

Whew! I think that is the first time I have listed my 10 years' worth of DRI seminar activities. While I'm at it I may as well add that I have published two articles in DRI's monthly journal, For The Defense. In the June 2008 issue, I published "Planning for Catastrophic Emergencies: What Can We Learn From Post-Katrina Government Investigations And Litigation?" In the July 2010 issue, I co-authored, with my former partner and good friend Bart McNeil, an article titled, "The National Practitioner Data Bank: How Required Reporting Can Impact Case Resolution."

So what is the point of these observations? As a premise for expressing the three ways I have found DRI involvement over the years personally and professionally gratifying. First, the organization itself is comprised of and substantially run by a large number of talented, motivated volunteer professionals. DRI's leadership are attorneys, almost exclusively involved in the civil defense practice, who donate their time and professional skills to educating and inspiring all civil defense practitioners as we advocate on behalf of defendants in civil actions. These leaders are inspirational to attorneys like me, who enjoy the financial rewards of our work but who also seek to meaningfully ground what we do within the greater context of America's legal justice system.

Second, the organization provides opportunities for business development and networking with colleagues. While involvement in state and local professional organizations is important, in those organizations we are usually working with our competitors. As an international organization, DRI members are multi-jurisdictional. I can (and do) network with colleagues in other parts of the country with clients who have needs in my state. There is no competitive disadvantage to sharing client referrals with such colleagues. Moreover, when we can refer a client with business in another state to a trusted DRI colleague, our own stature with the client is improved.

Third, and most important, are the friendships I have developed through DRI involvement. We can gather, share intelligence, have fellowship and commiserate in equal measure.

So, I am attending the DRI Annual Meeting in San Francisco this week. I am looking forward to seeing old friends whom I only get to see once or twice a year. I am also looking forward to exploring other opportunities to serve the organization. I expect to add even more colleagues to my professional network. I also anticipate making new friends.

Richard Moore

Self Incrimination in a Civil Case

At times we are involved with cases that are intertwined with both the criminal and civil worlds, such as when a car accident causes an injury or death and the driver is charged with a crime (e.g. reckless homicide). During the civil portion of the case, the driver will typically be deposed and questions will be asked that could impact that individual's criminal case, and potentially his or her freedom. While we are all aware of the 5th Amendment's right to refrain from self-incrimination, how does this apply to a civil case? If a person were to invoke his or her 5th Amendment rights in a civil matter (e.g. by refusing to respond to discovery or be deposed), a civil jury can later draw an adverse inference from the witness' refusal to testify. On the flip side, if the person were to respond and waive the 5th Amendment in the civil matter, this information could be used against the person in the criminal case. This obviously puts the individual in a very difficult position. So what is the solution? Although not constitutionally required, a civil trial court may stay a portion of the civil litigation, such as discovery, during the pendency of the criminal matter. However, any such stay must be balanced against a civil plaintiff's right to the administration of justice without delay.