NEW HAMPSHIRE ASSOCIATION FOR JUSTICE

Volume 33 Spring 2011

In This Issue
An Interview with Chief Justice Linda S. Dalianis
Sabrina C. Beavens, Esq.
Trial by Jury: “Inherent and Invaluable”
Beth A. White
Gone to the Dogs
Kenneth M. Brown, Esq.
Eavesdropping and Spying
in Domestic Relations Cases
Eric M. Sommers, Esq.
Inadmissibi lity of Helmet
Nonuse under
New Hampshire Law
Kevin F. Dugan, Esq. and
Jared R. Green, Esq.
My Turn: State Farm is
Not a Good Neighbor
Finis E. Williams, III, Esq.
National Perspective
Robert S. Peck, Esq. and
Jeffrey R. White, Esq.
Low-Cost Technology
Resources for Trial Lawyers
Travis Little, Esq.
I.B.M. Watson, Esq.
Martin R. Jenkins, Esq.

Plus Verdicts and Settlements,

Member News and more!
 33TBN - Spring 2011

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50
Spring 2011 - 33TBN

51
33TBN - Spring 2011

NHAJ
2010-11 Board of Governors NEW HAMPSHIRE ASSOCIATION FOR JUSTICE
President
Paul M. Monzione
Wolfeboro
TRIAL BAR NEWS
President-Elect
Maureen Raiche Manning Editor-in-Chief Thomas R. Watson, Portsmouth
ISSN 08934789
Manchester Managing Editor Jared R. Green, Manchester
40 North Main Street, 2nd
Verdicts and Settlements Editor V. Richards Ward, Wolfeboro
Treasurer Floor
Paul W. Chant Superior Court Digest Editor Benjamin T. King, Concord
Concord, NH 03301
North Conway Issue Editor Ellen J. Shemitz, Concord
(603) 224-7077
Production Manager Julian D. Keenan, Concord
Secretary
Barney L. Brannen Trial Bar News is a quarterly publication of the New Hampshire Association for Justice. It is a forum for the bar, bench,
Grafton and others concerned with the administration of justice. We invite people to submit letters, articles and proposals to the
Board of Editors for review.
Immediate Past President The statements and opinions expressed in the editorials, articles and commentaries are those of the authors and not
Ralph F. Holmes necessarily those of the Association. Although Trial Bar News is the official publication of the Association, opinions
Manchester expressed should not be construed as an endorsement by the Association of any opinions or facts expressed therein.
Opposing viewpoints are welcome and, if possible, will be published.
Governors-at-Large Subscription price is $160 / year to non-members; $60 to members (included in annual dues).
Heather M. Burns Advertising rates on request. POSTMASTER: Send address changes to Trial Bar News, 40 North Main St, 2nd Floor,
Concord Concord, NH 03301. Periodical postage paid at Concord, NH.
Ronald J. Caron
Manchester Issue Area Editors Here Come the Judges
Dawnangela A. Minton Appellate Practice & Federal Practice
Christine M. Craig Scott H. Harris Business Litigation Friday, June 17, 2011
Dover Michael J. Sheehan Civil Rights 9:00 a.m. to 4:00 p.m.
Kevin F. Dugan Charles G. Douglas Consumer Protection 6.0 CLE Credits (1.0 Ethics)
Manchester Jon Meyer Employment Law Radisson Hotel, Manchester, NH
Ryan L. Russman Criminal Defense
Margaret R. Kerouac John S. Kitchen Elder Law Program Chair:
Manchester Margaret R. Kerouac Family Law Finis E. Williams, III, Esq.
Jared R. Green Medical Negligence
Paul A. Maggiotto Heather Menezes Personal Injury
Concord Benjamin T. King Regulatory Administrative Law/ Secure your Spot Today!
:RUNHUV¶&RPSHQVDWLRQ
Michael S. McGrath
Concord Front Cover: Chief Justice Linda S. Dalianis of the New Hampshire Supreme Court in front of the
Roger D. Turgeon Supreme Court building.
Haverhill
Andru H. Volinsky
Past Presidents
Manchester
Ralph F. Holmes ........................ 2009-10 Leslie C. Nixon ..................... 1992-93
County Governors
William D. Woodbury Scott H. Harris ........................... 2008-09 Mark S. Gearreald ................. 1991-92
Belknap
Christopher J. Seufert ................ 2007-08 Gary B. Richardson ............... 1990-91
John B. Kenison, Jr.
Hillsborough North Heather M. Burns ...................... 2006-07 R. David DePuy .................... 1989-90
David M. Gottesman Matthew B. Cox ........................ 2005-06 Lee C. Nyquist ...................... 1988-89
Hillsborough South
Thomas E. Craig........................ 2004-05 Edward W. Stewart, Jr. ......... 1987-88
Benjamin T. King
Merrimack Timothy C. Coughlin................. 2003-04 Roger B. Phillips ................... 1986-87
Timothy C. Coughlin Paul A. Maggiotto ..................... 2002-03 John P. Griffith ...................... 1985-86
Rockingham
Patrick T. O'Day Nicholas D. Brown .................... 2001-02 Bernard J. Robertson ............. 1984-85
Strafford
Martin R. Jenkins ...................... 2000-01 Edward R. Thornton, Jr. ........ 1983-84
AAJ Representatives
Thomas R. Watson Kevin F. Dugan ......................... 1999-00 John T. Broderick, Jr. ............ 1982-83
Governor
Finis E. Williams, III ................. 1998-99 Robert L. Hemeon ................. 1981-82
Finis E. Williams, III
Governor David M. Gottesman ................. 1997-98 W. Wright Danenbarger ........ 1980-81
Leslie C. Nixon Linda S. Saunders...................... 1996-97 George W. Walker ................ 1978-80
Delegate
Thomas R. Watson .................... 1995-96 Harold W. Perkins ................. 1977-78
Christopher J. Seufert
Delegate $*2¶1HLO-U ......................... 1994-95 6WHSKHQ/7REHU«««««
Kenneth C. Brown ..................... 1993-94

52

As the business year for the New
Hampshire Association for Justice and
my term as President come to an end,
I cannot help but look back over the
last year and review what we have
accomplished and appreciate all that
we have left to do.
At our annual retreat, the Board of
Governors confirmed the commit-
ment that we are an association that
exists primarily to keep lawyers who
represent victims of injustice in prac-
tice and to protect their interests on
the legislative level and in our civil jus-
tice system. In this regard, we worked
hard to ensure that all of the tools nec-
essary to promote and carry on the free
exchange of ideas and information and
to fully educate our members, the
Legislature, and the public, were made
available for our members.
As part of this effort, plans for spe-
cialized listserves with more stringent
requirements for membership have
been implemented so that in addition
to the general listserv available for fully
qualified members, lawyers needing
information in the practice areas of
medical malpractice, workers’ com-
pensation, and personal injury law,
will have a more secure method for
obtaining help and exchanging infor-
mation and ideas.
Largely through the efforts of Paul
Chant, a membership task force has
begun the crucial work of reaching out
to new members and former members
who have not renewed their member-
ship as one way of increasing the num-
ber of members. We increased our lob-
bying efforts in light of last November’s
election results, and our officers met
with our new Chief Justice Dalianis
and with Judges King and Kelly regard-
ing court funding and the new Circuit
Court system, respectively.
There were many administrative
issues for the effective management
President’s Message
by Paul M. Monzione, Esq.
and operation of our Association which
were implemented this year and which
took a substantial amount of time and
effort on the part of the officers and the
Executive Committee to resolve.
Working with Ellen Shemitz, we recon-
firmed that the day-to-day operations
of our Association continue to work
well and in a fiscally sound manner in
a difficult economy. Our Executive
Director continues to keep our fiscal
house in order. Additionally, and again
with help from Paul Chant’s office,
data were entered into our new soft-
ware program, which is now fully
implemented and up and running
making the day-to-day operations even
more efficient.
This year’s emphasis on education
of our members, the Legislature, and
the public, was well implemented not
only through our CLE programs, par-
ticularly the luncheon Web seminars
which were a tremendous success, but
through our lobbying efforts. We also
established relationships through meet-
ings with reporters and editors of major
newspapers in an effort to keep the
public educated about the issues that
affect their constitutional rights, jus-
tice, and access to our courts. As I have
done in the past, I was also able to
debate an advocate of medical malprac-
tice tort reform on New Hampshire
public radio on “The Exchange” pro-
gram. Each of these efforts helped to
assure that our clients and the public at
large are informed about proposed laws
that would eliminate or greatly inter-
fere with their constitutional rights to
obtain justice when they have been
wronged by the conduct of another.
Over the years, a number of our
presidents have come from some of the
larger law firms in New Hampshire and
more often from firms with several
attorneys. Given the substantial
demands that are placed on the
Spring 2011 - 33TBN
PAUL M. MONZIONE, ESQ.
PAUL M. MONZIONE of the Law Offices of Paul
M. Monzione in Wolfeboro received his JD in 1981
from Southwestern University School of Law. Since then,
both on his own and as a partner of Melvin M. Belli, Sr.
(deceased), he has represented hundreds of plaintiffs in a
wide range of personal injury actions including tobacco
litigation, toxic torts, product liability cases, pharmaceu-
tical litigation, construction defects, wrongful termina-
tion, medical malpractice, human rights civil litigation,
the Exxon Valdez oil spill litigation, and litigation
resulting from air disasters including the downing of KL
Flight 007 and the Pan Am Flight 103 bombing over
Lockerby, Scotland. He has also provided legal services
and representation to many entertainment industry
clients. In addition to his principal office in Wolfeboro,
he practices in Massachusetts and California.
President ranging from administrative
issues to larger policy-based issues
made in coordination with the
Executive Committee and the Board
of Governors, it is very helpful to the
President to have partners or other
attorneys in his or her office who can
fill in and cover for a president who is
required to spend many days out of the
office fulfilling the responsibilities as
President of the Association.
When I first thought about taking
on the responsibilities of President, it
occurred to me given the size of my
office and the extent of my practice
that lawyers from small firms may not
be able to serve effectively, as the first
responsibility must be to one’s clients
and to the office if the practice is going
to stay viable. The argument is that if
53
33TBN - Spring 2011
officers can only come from the larger
firms, the Association would be
deprived of the opportunity to have a
large number of talented and qualified
attorneys serving in these roles.
In order to solve this dilemma, I
found it necessary to have the assis-
tance of the other officers and of the
Executive Committee members and to
rely on each of them in varying degree
to assist me in carrying out the respon-
sibilities as President. This not only
enabled me to perform the duties of the
President, but gave the Association the
collective wisdom of all the other offi-
cers and members of the Executive
Committee, particularly in dealing
with some of the more difficult and
time-consuming issues. Without the
help and dedication of our President-
Elect, Maureen Manning, our
Treasurer, Paul Chant, our Secretary,
Barney Brennan, and the members of
our Executive Committee, Dave
Gottesman, Tom Watson, and our
immediate Past-President, Ralph
Holmes, I would not have been able to
fulfill my role as President. For the help
and dedication of each of these individ-
uals, I am truly grateful.
As I write this last “President’s
Message” I am looking out of my win-
dow onto Main Street, Wolfeboro,
where I watched a man on the sidewalk
54
get down on one knee and propose to a
woman. She said yes, and I am remind-
ed about the reasons we trial lawyers do
what we do. So much of what we do
involves the quality of our clients’ lives.
How often do we have to convince the
jury what it means to lose one’s quality-
of-life which is really just the ability to
do the things that are most important?
To play with our children or grandchil-
dren, to enjoy an outdoor setting, to
propose to the love of our life and hope
the answer is yes, these are the things
that truly make life worth living. These
are the things that are lost when
because of a person’s carelessness, or a
corporation’s focus on profit instead of
consumer safety, another person suffers
a loss of quality-of-life.
Allstate Insurance Co. and many
other insurance companies like it place
very little, if any, value on the things
that are most important in life. The
other day, I tried a case to a jury verdict
over a $5,000 difference between the
offer and the demand where Allstate was
the insurance company. More often
than not, the jury does better than
Allstate with assessing the real value of
pain, suffering, and loss of quality of
life. One of our greatest challenges as
trial lawyers and one of our greatest
responsibilities is to demonstrate the
value of this loss to twelve jurors.
Last year I began by acknowledg-
ing and expressing gratitude to trial
lawyers who have paved the way for us,
and singled out Melvin Belli, my for-
mer law partner. I am going to
acknowledge him in my last message as
I did it my first one.
The Belli office in San Francisco
on Montgomery Street was one of the
regular stops on at least two bus tours
of the city because of how famous Belli
was. Tourists would come into the
office, including school kids.
Whenever one of the kids would ask
Mel what it takes to be a great lawyer
he would always say you have to love
people and you have to love the law.
I think most of us who practice the
kind of law our members do, love peo-
ple and love the law and that is the pri-
mary reason we do what we do. It is
harder and harder to tell whether the
members of the Legislature love people
or the law. We all can comfortably con-
clude that Allstate Insurance Company
and the other insurance companies like
it do not love people or the law.
Mel used to also say, “Don’t settle
that case. Try it. We are trial lawyers,
and trying cases is what we do.” That
advice is just as good now as it was
many years ago. The only way to suc-
ceed against the interests of those who
would take away access to the courts,
trial by jury, the ability of clients to hire
attorneys, and who would reduce the
damages that a jury could award to
someone who has lost the most impor-
tant things in life, is to reject what the
insurance companies are doing and
take the case to trial, to the people who
make up the jury. The New Hampshire
Association for Justice works daily to
provide its members with the things we
need to represent our clients effectively.
Without this Association, we would
not be able to do the things that we
must do. For its Members, its Board of
Governors, its Executive Director, and
its Officers, I am truly grateful, and I
look forward to the next year under the
leadership of our next president,
Maureen Manning.

From Your Executive Director
Friends:
Our Justice system is under attack,
with inadequate judicial branch fund-
ing and a slew of bills threatening per-
manent disequilibrium in the scales of
justice. Even the most generous budg-
et proposal under consideration would
leave five superior court seats vacant
through the next biennium and limit
jury trials to eight months a year.
Circuit Court implementation has
been accelerated, with a start date of
July 1, 2011, requiring more than sixty
staff layoffs and reducing the number
of Court Clerks and Deputy Clerks by
more than half. These cuts undermine
access to justice, placing at risk the
core mission and values of NHAJ.
Budget challenges are exacerbated
by special interest bills that seek limits
to the constitutionally protected right
to legal redress. Consider this partial
listing of initiatives NHAJ has faced
this year:
• Immunities for diverse interests,
from road salt applicators, to
antifreeze distributors, school per-
sonnel, emergency obstetrical care
providers, and state park volun-
teers.
• Comprehensive tort deform that
would limit contingency fee agree-
ments, cap noneconomic damages,
restrict wrongful death actions, and
impose periodic payments in lieu
of lump sum damages.
• An offer of judgment rule that
would deter meritorious lawsuits
by allowing the award of costs and
attorneys fees in cases where the
final judgment was less than or
equal to a defense settlement offer.
• An expansion of the “I’m sorry”
rule that would allow doctors to
admit fault to a family- but deny
that admission in the courthouse.
Fighting on multiple fronts takes a
great deal of time ... and money. As of
this date, our lobbying expenses make
by Ellen J. Shemitz, Esq.
up more than 20% of our budget: an
expense we seek to cover with contri-
butions to the Voices for Justice
Campaign. Thanks to the generosity of
many of you, we have raised $50,000
this year- but that sum does not cover
our lobbying contract. If we are to con-
tinue to fight this assault on civil jus-
tice, we are going to need 100% finan-
cial participation from our members.
We make this request fully aware of the
many demands on member resources.
We make this request fully aware of our
obligation to provide members with the
best value for the dollar.
As a member of NHAJ, you
belong to a team of concerned profes-
sionals willing to assist you and your
clients in every fight you face, from the
courthouse to the statehouse. Our
lobbyists are first rate, covering every
hearing, every legislative affair, and
every hallway power huddle related to
civil justice. Our member benefits,
already rich, keep improving. Take for
example our member-only listserve,
long considered the number one mem-
ber benefit. This year we are expanding
member options by adding three spe-
cialty listserves:
• Our medical negligence listserve
will connect members who repre-
sent claimants in medical negli-
gence cases (and whose firms do
not provide any medical negli-
gence insurance defense).
• Our workers’ compensation list-
serve will connect members who
represent only workers/claimants
in workers’ compensation cases
(and whose firms do not practice
any workers’ compensation insur-
ance defense).
• Our plaintiffs’ personal injury list-
serve will connect members who
represent plaintiffs only in person-
al injury matters (with the exact
practice requirements not as yet
finalized).
Spring 2011 - 33TBN
ELLEN J. SHEMITZ, ESQ.
ELLEN J. SHEMITZ serves as the Executive Director
of the New Hampshire Association for Justice. Prior to
joining NHAJ, she worked to advance children’s rights,
both as an attorney for special needs children and as
President of the Children’s Alliance of New Hampshire.
She earned her undergraduate (1983) and law degrees
(1987) from Yale University.
With these new listserves, you will
still be able to post any litigation-relat-
ed question to the general listserve, but
if you want the scoop on an expert and
you do not want defense counsel to
have access to the discussion, you have
a more protected means for the
exchange of information.
We have enriched other benefits
too. Check out our website for numer-
ous e-services, including on-demand
webinars, an expanded pleadings bank,
and a soon-to-be-unveiled enhanced
verdicts and settlement database. For
years, members have turned to our
printed verdicts and settlements for
information on comparable cases.
Unfortunately, much of the online
information was limited to the bare
minimum: names, dates, and dollars.
We have gone back through our files
and entered far more detailed informa-
tion for each case as available, allowing
you to search by name of expert, type
of injury, etc.
Perks for sustaining contributors
have been enhanced as well. For only
$250 over regular member dues, sus-
taining contributors can add eight free
practice area listings to their online
55
33TBN - Spring 2011

member directory, participate in our
free, sustaining-member-only referral
service, and, new this year, enjoy free
access to written materials produced
for all CLEs held during the member
year. Hundreds of forms, memos, tem-
plates, strategic recommendations: all
accessible online. All at no additional
cost for sustaining members.
Right about the time you receive
this issue of the TBN, you will also
receive your dues statement for the new
member year. Please take a moment to
complete the full form. Make sure to
fill in your home address, so we can link
each of our members to a state represen-
tative and senator. Consider a sustaining
membership, for your benefit and for
ours. Ask us to send you more informa-
tion on our Voices for Justice program
(just check the box). We admit that
completing this year’s form may take a
few extra minutes of your time, but it
will make the entire process more
streamlined, allowing us to eliminate
numerous forms and, hopefully, reduc-
ing follow-up phone calls and emails
requesting additional information.
Finally, as you consider the many
ways that NHAJ serves you and your
practice, please take a moment to join
me in thanking our President, Paul
Monzione, whose leadership and sup-
port this year have allowed us to move
forward strategically. Leading this Board
as a solo practitioner presents unique
challenges. Paul Monzione’s willingness
to take on those challenges and to serve
our association so well deserves our
recognition and appreciation.

NHAJ W
Weelcomes th
the Following New Mem
embbers

Kimberly M. Cochran, Esq. Kysa M. Crusco, Esq.

Steiner Law Offi
Office Crusco Law Office
Mil
ilford,
ford, NH Bedford
dford,, NH

Lucinda Hopk
pkiins, Esq. Elizabeth A. Le, Esq.
Attorne
neyy at Law Gormley & Gormle
leyy
Manchester, NHNH Nashua, NH
NH

Susan A. Lowry, Esq. Kathy E. Needleman, Esq.

Boynton, Waldron, Doleac, Woodman & Scott Attorne
neyy at Law
Portsmouth, NH
NH Concord, NHNH

Lanea A. Witk
tkus
us, Esq. Pamela Barker
Witkus Law Offi
Office Cooper Cargill C
Chant
hant
Newport
port,, NH North Conwa
onwayy, NH

Joyce E. Scott, Esq. Timothy L. Chevalier

er,, Esq.
Attorne
neyy at Law J. Mille
Miller & Associates
Newburyport, MA Concord, NH
NH

56
Spring 2011 - 33TBN

57
33TBN - Spring 2011
An Interview with Chief Justice Linda S. Dalianis
Trial Bar News met with Chief
Justice Linda S. Dalianis on April 15,
2011, four months after she was sworn
in as New Hampshire’s 35th Chief
Justice and, of course, our first female
chief justice. As members of the Bar,
we are familiar with the steep and
daunting challenges facing the courts,
caused by what Chief Dalianis recent-
ly described as the perfect storm: drasti-
cally reduced resources during a time
of increased demand for services.
Fortunately, Chief Justice Dalianis,
already recognized as a pioneer for
women in the law, stands at the helm,
determined to battle the storm. It was
truly a privilege to spend time with
Chief Justice Dalianis and we thank
her for her time.
Chief Justice Dalianis graduated
from Northeastern University in 1970.
Upon graduation, she attended Suffolk
University Law School part-time at
night, while working during the day as
a legal secretary at the Boston law firm
of Sullivan & Worcester. Chief
Dalianis quickly distinguished herself
at the law firm, where one of the part-
ners, Robert Bleakney, Jr. mentored
her and promoted her to law clerk: a
position formerly held only by Ivy
League students. Upon her graduation
in 1974, Chief Dalianis joined
Hamblett & Kerrigan in Nashua,
working for Joseph Kerrigan, her sec-
ond mentor, whom she credits as “tak-
ing a chance on her” at a time when
there were very few female attorneys.
At Hamblett & Kerrigan, Chief
Justice Dalianis mostly defended civil
cases. As one of the few female attor-
neys in Nashua at the time, family law
cases also seemed to “find” her. In
1979, the Chief Justice was appointed
to the Superior Court as a Marital
Master. In her statement to the
Executive Council on November 29,
2010, Chief Dalianis described the job
of a Martial Master as “one of the most
58
by Sabrina C. Beavens, Esq.
difficult jobs in the judicial system.”
The following year, 1980, Chief
Dalianis became the first woman
appointed to the Superior Court. For
several years, she remained the only
woman on the Superior Court bench.
During this same period, the Chief
Justice became a parent with two young
sons, Matt and Ben, balancing the
many demands on her time without
any of the legal protections which
women today, like me, take for granted,
In March 2000, Governor Jeanne
Shaheen asked Chief Justice Dalianis
to serve as the Chief Justice of the
Superior Court – another first for a
woman in New Hampshire. Only one
month later, Governor Shaheen asked
her to join the Supreme Court as its
first female justice. Chief Dalianis
served the Supreme Court as an
Associate Justice until December
2010, when she was sworn in by
Governor Lynch as the Chief Justice.
Her professional journey is an inspira-
tion for male and female lawyers: a
reminder to continue the efforts to
advance equality in the profession for
our daughters, granddaughters, nieces,
and all the other women who will join
the profession behind us.
Q: When you were asked to become
a Marital Master, did you immediate-
ly know that you would accept the
position?
A: I immediately knew that I wanted
to do it and a big part of my decision
was that I had been, to that point, a lit-
igator. I was comfortable doing that,
but I also knew that my temperament
tended more toward mediating, and
being in the center, instead of polar-
ized. I have always had the ability to
see both points of view and make the
counter argument against myself so I
thought, “well, I would probably be
well suited to be in the position of
making the calls and I think it would
be a comfortable fit.”
SABRINA C. BEAVENS, ESQ.
SABRINA C. BEAVENS recently re-joined Iurillo &
Associates, P.A. based in St. Petersburg, Florida after
practicing with Burns, Bryant, Cox, Rockefeller &
Durkin, P.A. for three years. Sabrina’s areas of concen-
tration include Foreclosure Litigation, Bankruptcy,
Creditors’ Rights, and Business Law and Litigation.
Q: Fast forwarding to just a few
months ago, could you describe how
the nomination process for Chief
Justice worked, including whether you
thought you might be nominated?
A: In mid-November, the Governor
called me the day before he made the
nomination at the Executive Council
meeting. I thought I had a reasonable
chance at being selected and hoped
that I would be but I did not take it for
granted. When I actually received the
call and the Governor asked me if I
was willing to become the Chief, I was
delighted and honored.
Q: Is your role as Chief Justice dur-
ing oral argument noticeably different
than when you sat as the Senior
Associate Justice?
A: The Chief is just one among
equals in the Court, as far as the Court
is concerned, but the Chief is also the
ceremonial leader. I previously served
the Chief ’s function on 3JX panels or
if the Chief were away or disqualified,
so it was something that I had done

before. However, directing oral argu-
ment is now my full-time job, not just
a part- time job.
Q: So far, what has surprised you
about being Chief Justice?
A: Nothing. I foresaw that I would be
completely immersed in budget issues
because my confirmation was coinci-
dent with the beginning of the bi-
annual budget cycle and that is the pre-
eminent job. I also foresaw that I
would have to figure out how to triage
the responsibilities of the Chief and
decide what things I had to concentrate
on and what things that I probably
should do, but could delegate. Then
there is another category of things I
couldn’t possibly do unless I had a
clone. I’ve had to figure out how to pri-
oritize responsibilities and to jettison
some that might be nice, new projects,
and things like that, but I just can’t
afford to undertake right now because
of lack of time and energy.
Perhaps, one thing did surprise me
and that was how much of my time
would be consumed by non-judge
things and that my adjudicative job
was and remains, kind of squeezed into
the corner. I have to spend a lot more
time on weekends working on my
adjudicative responsibilities because
during the work week the administra-
tive responsibilities pretty much swal-
low all of my time. It is two full-time
jobs. I am trying to make it into one
and a half full-time jobs.
Q: Was the role as Administrative
Officer of the Courts always as time
consuming as it is now with the on-
going budget crisis?
A: I think it depends upon the indi-
vidual. I feel a great responsibility, as
did Chief Broderick, to be right there
in the thick of things, helping to figure
out what the problems are, what the
solutions are, developing strategies, so
on and so forth. To the extent a Chief
is of that mind, then the responsibili-
ties are exceptionally time consuming.
However, I think another model could
work if the Chief were of a particular
mind to delegate more and to be more
the “final answer” instead of the “how
do we develop the strategy” person. So,
it could be less time consuming if I
were less hands on. But of course, I am
not inclined to be less hands on, espe-
cially because of the budget.
Q: When the budget issue is resolved,
what are the projects that you are
looking forward to focusing on?
A: Well that will be very easy to tell
you. Our budget situation is enmeshed
deeply with the implementation of the
reform proposals that the Innovative
Commission has given us. As soon as
the budget is finished, the next thing to
do will be to make sure that the Circuit
Court is up and running, the call center
is up and running, the video arraign-
ment system is up and running and the
E-Courts project is launched. I won’t
have any trouble finding things to do!
SB: As trial lawyers, what differences
are we going to notice when the
Circuit Court is open?
A: You won’t notice any difference.
The differences are essentially adminis-
trative. You will go to the same court-
house. You will have the same hearing.
You might notice, depending upon your
practice, fewer in person hearings and
more video hearings because we are try-
ing to transition to that, not just in the
criminal court but also, to some extent,
in civil and marital. So you might notice
that. And if we manage to do what we
say we are able to do, you will notice an
increased ability to interface with us
electronically and that should be to
everybody’s benefit. But in terms of
going to court for a hearing on the mer-
its, you won’t see any difference at all.
Q: In addition to the Circuit Court,
you also mentioned a potential new
videoconferencing system and a call
center. Could you tell us about the
technological upgrades we could be
seeing in the near future?
A: We have a capital budget request
that so far has been approved in the
House but has not yet been voted on in
Spring 2011 - 33TBN
the Senate. It gives us just under
$3,000,000, roughly $100,000 of
which is to outfit a centralized call cen-
ter, which will field all of the calls com-
ing into the court system. We will have
specially trained people who will have
the case management system in front of
them and they will be able to answer
the questions that are routinely asked
every day, such as “Has my hearing
been continued? Has the order been
issued? How do I find the courthouse?”
We have done some pilots on this and
discovered that about 70% of the calls
that come into the courts everyday can
be answered centrally. Further, the call
center will have the added advantage of
the technological capacity to transfer
the call automatically without, as the
case is today, having to tell a caller that
the person they need to speak to is not
in that court, so they must hang up and
dial a different number. So, the public
should realize benefit from that project.
The second component of our cap-
ital budget request is a little over
$500,000 for video conferencing equip-
ment. There will be a video set up in
each building to allow for video confer-
encing between the courts, the jails and
the public defenders. Eventually we
anticipate that the system could provide
access for police departments or the
Attorney General’s office to use the sys-
tem to the extent they choose to do so.
However, at the moment the project
will be to outfit the court buildings, the
jails and the public defenders so that the
default position for arraignments and
bail hearings and other minor criminal
matters, at least at the outset, will be
remote rather than on site. If a defen-
dant believes that he or she should be
physically in court for a hearing, he or
she would have to show cause why that
is so. Of course, if the hearing has any-
thing to do with the merits of the case
or anything of substance, there won’t be
any question about everyone appearing
physically in court. The savings cap-
tured by the videoconferencing system
will not accrue as much to the judicial
branch, but the reduced costs will be
noticed by the counties because it will
59
33TBN - Spring 2011
reduce transport and guarding costs. In
addition, it will, in our view, vastly
increase public safety because if you
have incarcerated individuals stay
where they are you reduce the risk that
something will happen during the time
they are being moved.
Q: Sounds great! As I have integrated
videoconferencing into my practice, I
am finding that people, in general, are
becoming more and more comfortable
with its use.
A: It’s a culture shift. People have to
get used to it, but especially in our
Northern rural counties or in the bad
weather months, it will turn out, I’m
sure, to be a valuable tool to everybody.
Q: Of all of the efficiency improve-
ments that I have read about that may
be coming to our courts, the one that
interests me the most is E-filing. What
impact do you view that system hav-
ing on parties?
A: E-Court is the third part of our cap-
60
ital budget appropriation. It is our plan
to digitize and interconnect all of the
courts throughout the state. In our view,
it will have a big positive impact on
practitioners, but it will also, and this is
our challenge and not so much yours,
have a positive impact, on the people
who, in increasing numbers, choose to
or must be self-represented. All in all,
everybody should see improvements
when we get it up and running.
Q: For our last issue, I interviewed
Chief Justice Broderick, who described
feeling at times that someone was
going to knock on your door and say
“Hey, this is the Chief ’s office, what
are you doing in here?” Can you relate?
A: No, but you have to remember I
have been a judge in this system for
more than 30 years. In an odd way it
seems, perhaps not a logical progres-
sion, but not a completely unsurprising
progression. It took me a while to come
down from the high of it, of course, but
when you are in the middle of the
budget wars, being too full of yourself
doesn’t get you very far.
Q: In preparing for today and think-
ing back to the interview with Chief
Broderick, I wondered whether your
different backgrounds – his spent
largely in trial practice and yours
spent largely on the bench, impacted
how you approach a case?
A. The differences in our back-
grounds informed our discussions. As a
longtime trial judge, I had a very clear
sense of what was going on in the trial
and what the judge was thinking or try-
ing to accomplish with any particular
problem. Chief Broderick would have
some ideas, but they would be proba-
bly coming from a different perspec-
tive, that is the trial lawyer and trying
to figure out how to handle the prob-
lem from the trial lawyer’s point of
view. So we would talk about the
opposing sides of that particular coin in
an effort to resolve whatever the issue
in front of us happened to be. I don’t

think the background makes any par-
ticular difference to your ability to be a
good appellate judge, although I do
think having experience in a courtroom
somehow is if not critical, at least valu-
able, because, what are we doing after
all? We are looking over the shoulders
of the trial judges.
Q: I wouldn’t be doing my job if I
didn’t ask you about briefs and oral
argument. What do you find persua-
sive in a brief?
A: That it is brief. It is called a brief
for a reason. What I don’t find persua-
sive is repetition, which is a rampant
problem. I think lawyers think “I’ve got
to write it down seven times because
otherwise they won’t get it.” Well,
maybe you could repeat it twice, but
the third time I will start to get
annoyed.
I also don’t like gratuitous jabs at
your opponent, which is not as uncom-
mon as you might think. The lawyers
will take swipes at opposing parties and
counsel that don’t add anything, but
rather distract me from what I am
thinking about the persuasive power of
their arguments. In other words, I don’t
like cheap shots in briefs and they are
not uncommon.
Q: How about oral arguments?
A: For oral arguments, we are all pre-
pared. We know what the facts of the
case are and unless we ask for particular
explanation of some factual part of the
case, go right to the legal issues, forget
the factual summary. Start by, if you
can, countering your opponent’s best
argument or, by highlighting your best
argument, one or the other. But you
should do both of those things and not
spend precious oral argument time on
issues that you should have already rec-
ognized as less important than your
critical issues and probably not likely to
be winners anyway. Just concentrate on
your best argument and challenging
your opponent’s best argument.
Repetition in an oral argument is not
well received either, so there is no
shame in stopping your argument
before the red light comes on if you
have said what you’ve come to say.
Q: In the heat of the moment, it can
be a difficult thing to do for some of us.
A: Oh sure. In fact, the lawyers that
appear here most often, who tend to be
members of the AG’s office and the
appellate defenders, have got that down
cold and they do know when to stop.
They frequently do stop unless the time
is necessary because of the length or
complexities of the issues involved.
People who don’t come here very often
don’t seem to feel comfortable about
that and so sometimes, toward the end
of their 15 minutes repeat themselves
because, while they have run out of
things to say, they are nervous about not
speaking until the red light comes on.
Q: Do you have a preference for the
types of cases you hear?
A: It is not as easy a question to
answer as you might think because
what I really enjoy the most is the
breath of the experience so that though
a particular case might be dry as dust, it
will still interest me, if only for the
intellectual challenge of trying to figure
out the answer to a difficult problem.
So, I don’t have any preference for any
particular kind of case.
Q: Prior to oral argument, do you
read all the briefs?
A: Yes, every single one. Now, you
learn over time that there are some
things that you don’t necessarily have
to learn by heart before the oral argu-
ment. For example, there are lots of
pleadings that are produced in appen-
dices that you do not necessarily have
to go through one by one, because
what you really want to get at is the
trial court order that relates to those
pleadings.
Q: When do you vote?
A: We take a straw vote after oral
argument and the straw vote informs
the authoring justice of the court’s gen-
eral feeling at that point in time. It is
not infrequent, however, that further
Spring 2011 - 33TBN
research and further consideration of
the nuances of an argument might
make the straw vote something that
should be revisited.
Q: Do you know before oral argu-
ment or after who is going to write the
brief?
A: We know before. We draw, ran-
domly, usually 2 or 3 weeks ahead of
any argument dates. So I know which
cases I will be given authoring respon-
sibility for before I hear the argument.
In those cases, my tendency would be
to read every single piece of paper
before oral argument even if I would
not otherwise do that if it were not my
case. Overall, we are always prepared to
a greater degree than some people
might suspect.
Q: Even if after you have completed
your preparation for oral argument
and know, or at least think you know,
where you will vote, can oral argu-
ment change your mind?
A: Oh yes, it can and it does. Because
the only thing that any of us does in
advance for our argument is to figure
out what are the issues, what are the
arguments that are being made and
develop a general sense of, well, at the
moment it seems like that should be an
affirm or this issue looks to me like it
might be a reverse. So it is just prelim-
inary thinking, but no minds are ever
made up and it is not infrequently the
case that I might have a notion about a
case before oral argument and as I’m
listening to the argument I realize that
I may have actually misperceived that
issue and now the other position seems
to be making more sense.
Q: What is a common mistake from
lawyers at oral argument?
A: Advocates should think of oral
arguments as an opportunity to debate
the points of their case with the judges.
What a lot of lawyers do not realize is
that oral argument is for us, it’s not for
them and it’s the only time when all 5
of us, assuming nobody is disqualified,
are focusing upon the case all at once.
61
33TBN - Spring 2011
It is our opportunity to clear up issues
in our minds about the things that the
appeal concerns by asking questions
about it; or, by playing devil’s advocate
we are trying to tease out the things
that we are either troubled by or think
might be important. Our court does
that by questioning counsel pretty
extensively – we are not shy.
Q: I argued here a few years ago and
you were not shy.
A: There you go!
Q: Lastly, I would like to discuss your
experiences as one of the woman pio-
neers of the New Hampshire Bar.
First, how has the practice of law
changed for women since you joined
the Bar?
A: Considerably. I was only the 50th
woman lawyer ever admitted to the
New Hampshire Bar. When I joined,
women lawyers were regarded as either
exotic flowers or people who shouldn’t
be in the room. It took a long time for
the cultural shift to take place. It did
gradually and coincident, more or less,
with the increase in the number of
women going to law school. When I
was in law school in the early 1970s,
women were a rare breed. It was still
not thought of as a profession for
females. Gradually, however, and it
took quite a lot of time, the culture
shifted because it came to be perceived
that female lawyers were just as good or
bad as your average male lawyer and we
gradually, and it was largely impercep-
tible, gained the ability to just be
referred to as a good lawyer or not a
good lawyer regardless of our gender. I
can’t speak very ably to how things may
have changed for women in practice
outside the courtroom overtime, but in
court, it’s a level playing field.
Q: Can you describe your experience
early on as the first female Superior
Court judge?
A: Being the first women to have
obtained any of these particular posi-
tions was and remains, in and of itself,
an honor. However, I no longer
62
thought too much about that after
other women joined me on the
Superior Court. The time when the
issue of being the first woman weighed
heaviest one me was the seven years
when I was alone on the Superior
Court, young and relatively inexperi-
enced, hoping that I did not make such
a serious mistake as a judge that it
would hurt the chances of other
women coming behind me. That felt
like an enormous responsibility so that
by the time the second woman was
appointed to the Superior Court,
Margaret Flynn, now deceased, I felt as
if I could breathe a little bit easier
because I had not done the job badly
enough that it hurt others. Then over
time going forward as more women
began to populate the judiciary it
seemed like less of an issue. However, I
am not blind to the fact that I hap-
pened to be the pioneer female for all
of these jobs.
Q: That answer speaks to a thought I
had in trying to put myself in your
shoes when you were first appointed
to the bench. I imagined that I would
feel a pressure to do my job as the first
woman judge extremely well.
A: Well, in addition, you have to
remember that 30 years ago there was a
generalized notion that women were
not suited to be lawyers never mind
judges. If women weren’t suited to be
lawyers, well they definitely weren’t
suited to be judges, and so there was a
great deal of scrutiny and I felt the need
to do the job as well as I could possibly
do it in order to prove that women
could be capable judges.
Q: Are you able to put it into words
yet what it means to be New
Hampshire’s first woman Supreme
Court Chief Justice?
A: It is an honor that surpasses any-
thing that I could have ever imagined
for myself when I first started out in
this profession.
Q: At the time when you were “prov-
ing yourself ” as a new judge, how
were you able to manage raising two
young boys?
A: It became much easier once I was
on the bench because I was in charge of
my hours. In other words, the court
day is generally defined and if I had to
leave court for a family related issue
that could not be otherwise managed,
then I had the ability to do that. When
I was practicing it was much harder
because my life was less my own, and I
imagine that that remains true today
for women litigators. The way I was
able to make it work was that I had
plan a, b, c, d and sub plans d-a, d-b, d-
c, all in place. I had an exceptionally
good local daycare. My husband
worked half a mile from our house and
my parents lived across town. In addi-
tion, I could call my sister if necessary.
In other words, I had a support system
that was ready, willing and able to help
me out as necessary. That was impor-
tant because there was no latitude for
family interfering with your legal career
back in those days. There was no such
thing as maternity leave, never mind
the Family Medical Leave Act. It was
inexcusable in those days to say “I’m
sorry, I can’t do this piece of work
because I have to do something for my
children.” I went to a month long gen-
eral jurisdiction trial judge course in
Reno, Nevada just after I became a
judge and left behind a 6-year-old and
an 8-month-old baby. A month long,
and there was no question about it, you
did it. You didn’t get an exception
because you happen to have small chil-
dren at home. Now, a lot of that has
changed, thankfully. But, if I did not
have the close support network that I
had then I am not sure I could have
pulled it off.
Q: What it is like leading our courts
at this time in our history? Is it excit-
ing? Demanding?
A: It is certainly a challenging time. I
suppose any time would be exciting to
be Chief because you are suddenly in a
position where if you happen to have a
vision you might actually be able to
realize it because you can undertake

initiatives and projects and actually get
people to do them. So, I think that it
would be exciting at any time to be
Chief but right now, I think, the chal-
lenge is greater than the excitement
because the issues are so grave. We are
going to have to lay people off and that
is not ever an easy thing to do. The
access to justice issues are becoming
more challenging all the time because
of shrinking budgets and shrinking
courts colliding with ever increasing
dockets. So those are particularly chal-
lenging problems and as well, the trans-
formation of the Judicial Branch into a
21st Century entity is an enormous
challenge. So it is exciting, but the
Spring 2011 - 33TBN
excitement from my point of view, is
tempered by the challenge of pulling it
off. I’ll get excited when it is complete.
Q: We look forward to reaching those
milestones with you.
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33TBN - Spring 2011
Trial by Jury: “Inherent and Invaluable”
In the United States, there are two
places where every American is sup-
posed to be equal—at the ballot box
and in the courtroom. That equality is
a powerful right that should be cham-
pioned by every one of us regardless of
political affiliation because it is the
very definition of a free people.
Indeed, John Adams wrote,
“Representative government and trial
by jury are the heart and lungs of lib-
erty. Without them we have no other
fortification against being ridden like
horses, fleeces like sheep, worked like
cattle, and fed and clothed like swine
and hounds.”
Unfortunately, equality at the bal-
lot box is now in question. While we
still adhere to “one person, one vote,”
our political process is teeming with
money. It is now cost prohibitive for
many people to run for office, and
candidates receive big money contri-
butions. The most recent election also
showed the growing influence of mil-
lion-dollar, independent ad campaigns
on voters. After being elected to office,
lawmakers come under the influence
of special interest lobbyists.
That leaves our courts, and the
right to trial by jury, as the last citadel
of equality. As U. S. Sen. Sheldon
Whitehouse (D-RI) noted,
“Corporations hate juries. It’s the one
part of government you can’t buy.”
Two centuries earlier Thomas Jefferson
wrote, “I consider [trial by jury] as the
only anchor yet imagined by man, by
which a government can be held to the
principles of its constitution.” It is a
sentiment echoed by former U. S.
Supreme Court Chief Justice William
Rehnquist. “The right to trial by jury
in civil cases at common law is funda-
mental to our history and jurispru-
dence. A right so fundamental and
sacred to the citizens should be jealous-
ly guarded.”
The Trial That Sparked the American
Revolution
Most Americans don’t realize that
it was a trial that first ignited the fire
that became the American Revolution.
John Peter Zenger was the publisher of
64
by Beth A. White
the New York Weekly Journal. In 1734,
the newspaper published a column
that criticized Royal Governor William
Crosby for removing Justice Lewis
Morris from the bench. Outraged,
Crosby had Zenger arrested and
imprisoned for seditious libel. In
1735, Zenger was tried before a jury of
his peers. The jury found Zenger not
guilty because he had printed the
truth.
Zenger’s case guaranteed freedom
of the press—newspaper editors and
publishers could no longer be found
guilty for libel when they printed the
truth. It is a landmark decision that is
not only being studied in law schools,
but also journalism schools to this very
day. As a result of the decision, the
colonial newspapers were free to open-
ly criticize the British crown, and it
was in the press that the revolutionary
fervor grew in the decades following
the Zenger decision. As Gouvernor
Morris, who helped write the U. S.
Constitution, noted, “The trial of
Zenger in 1735 was the germ of
American Freedom, the morning star
of liberty that subsequently revolution-
ized America.”
The Origins of Trial by Jury
But why, in a society as oppressive
as Crosby’s New York, did Zenger have
an opportunity to present his case in
court and be tried by a jury of his
peers?
That answer goes back another
500 years to the signing of the Magna
Carta in 1215 by King John I. The
Magna Carta is the “great charter” that
protected the civil liberties of English
subjects and guaranteed the two great
pillars of democratic society—repre-
sentative government and trial by jury.
Chapter 39 of the document reads,
“No man shall be taken, outlawed,
banished, or in any way destroyed, nor
will we proceed against or prosecute
him, except by the lawful judgment of
his peers and by the law of the land.”
There had been earlier forms of
trial by jury for centuries. Beginning
around 2000 B. C., ancient Egyptians
BETH A. WHITE
BETH A. WHITE, is the executive director of the West
Virginia Association for Justice. She is a published histo-
rian and lecturer.
adjudicated matters through Kenbet,
which was comprised of eight jurors—
four from each side of the Nile. In the
6th century B. C., Dikastes, in which
designated citizens tried and passed
judgment on questions of law, became
the norm in Greece. The Greek system
evolved into Rome’s Judices by the 4th
century B. C. It was this system that
was most likely the first form of juries
in England, with it arriving on English
shores with the Roman Conquest. By
the late 800s, under the leadership of
Alfred the Great, trial by a jury of one’s
peers became the norm throughout
England.
William Blackstone, the great his-
torian of English common law, consid-
ered the Frankish Inquest, developed
in 829 A. D. as the start of the modern
jury system. Created by Louis the
Pious, the son of Charlemagne, it was
a “jury of administrative inquiry.”
Through it, royal rights were deter-
mined by a jury of 12 of the “best and
most credible men” in the locality. The
Frankish Inquest arrived in Britain
with William the Conqueror in 1066.
Less than two centuries later, the
Magna Carta affirmed that trial by
jury would be the standard for all sub-

jects of the English—and later
British—crown.
The British Bill of Rights
Unfortunately for the British peo-
ple, their right to trial by jury began to
break down in the 16th century. King
Henry VIII declared himself supreme
ruler of Great Britain, and part of his
strategy to retain that ultimate power
was the suppression and intimidation
of the courts. He also used the Star
Chamber, which had evolved from the
King’s Council during his father’s
reign. Initially instituted as a special
court for those too powerful to be held
accountable in the country’s common
civil and criminal courts, the Star
Chamber became a political weapon to
bring actions against those who chal-
lenged the crown. Its court sessions
were held in secret, with no indict-
ments, no juries, no witnesses and no
appeals. In a 1975 decision, the U. S.
Supreme Court wrote, “The Star
Chamber has, for centuries, symbolized
disregard of basic individual rights.”
The Star Chamber continued
under the Stuart kings into the 17th
century. Although the English Civil
War overthrew the monarchy in 1649,
the abuses of both the Star Chamber
and other limits on trial by jury contin-
ued under Oliver Cromwell. Following
Cromwell’s death in 1658, British
Parliament restored the monarchy and
Charles II was crowned king in 1660.
The truce between the crown and
Parliament was short lived, however, as
Charles II began to suspend laws passed
Parliament and continued to infringe
on the liberties guaranteed to the British
people in the Magna Carta. Charles II
even went so far as to repeatedly dissolve
Parliament when it convened.
When Charles II died in 1685
without producing an heir, the
Catholic James II ascended to the
throne. After his wife gave birth to a
son, Protestant members of Parliament
feared that Great Britain would again
become a Catholic monarchy beholden
to Rome. In the Glorious Revolution
of 1688, the Protestants overthrew
James II with the aid of the William of
Orange, of the Netherlands, who was
married to James II’s Protestant daugh-
ter, Mary.
Parliament offered the British
throne to William and Mary to rule
jointly, but after nearly 200 years of
abuses, the British people wanted the
assurance that the rights guaranteed to
them in the Magna Carta—including
the right to trial by jury—would not be
taken from them again. Before William
and Mary could be crowned, they had
to sign the British Bill of Rights. It was
signed in 1689. William Blackstone
later wrote, “The trial by jury ever has
been, and I trust ever will be, looked
upon as the glory of English law.
In the early 1600s, British subjects,
whose rights were threatened at home,
began sailing for America. The rights
that they had been guaranteed in the
Magna Carta, including trial by jury,
were reasserted in the colonial charters.
The right to trial by jury was included
in the First Charter of Virginia, which
was drafted in Great Britain in 1606—
and that right was guaranteed in all
subsequent colonial charters.
The Period of Revolution
In the wake of John Peter Zenger’s
trial, the right to trial by jury came
under attack in the colonies. The
British rulers suppressed the right in
order to limit challenges against British
authority and quell calls for American
independence. Almost immediately,
efforts to limit trial by jury became a
focal point for revolutionaries.
In 1751, the South Carolina
General Assembly declared that “any
person who shall endeavor to deprive
us of so glorious a privilege of trial by
jury” was an enemy to the people of the
colony. The Stamp Act Congress of
1765 wrote that “trial by jury is the
inherent and invaluable right of every
British subject in these colonies.” John
Jay, who would later become the first
chief justice of the United States
Supreme Court, wrote, “Know then
that we claim all the benefits secured to
the subject by the English
Constitution, and particularly the ines-
timable right of trial by jury.”
The fervor continued into 1774,
when the First Continental Congress
met in Philadelphia in 1774. That
Congress resolved that the American
colonists were entitled to “the great and
estimable privilege of being tried by a
jury of their peers in the vicinage.” The
following year, efforts by the British
Spring 2011 - 33TBN
rulers to deprive the colonials of their
right to jury trials was cited as one of
the causes of the American Revolution.
In the Declaration of Causes and
Necessity of Taking Up Arms, the
Continental Congress cited the denial
of “the accustomed and inestimable
privilege of trial by jury, in cases of
both life and property.” In 1776, in our
Declaration of Independence, the
charges against Britain’s King George
III included, “Depriving us in many
cases, the benefits of trial by jury.”
With that document, America’s found-
ing fathers made trial by jury a right for
which they pledged “[their] lives,
[their] fortunes, and [their] sacred
honor.”
Following the Declaration of
Independence, each colony had to
write a new state constitution. These
constitutions were based on the princi-
ples and rights outlined in the Magna
Carta and the British Bill of Rights, as
well as interpretation of British com-
mon law by men such as Thomas Coke
and William Blackstone.
In his June 1776 Virginia
Declaration of Rights, George Mason
wrote that “The ancient trial by jury is
preferable to any other and ought to be
held sacred.” He preserved that right in
the Virginia constitution that he wrote
later that year. The New York
Constitution states, “And this conven-
tion doth further ordain, determine
and declare, in name and by authority
of the people of this state, that trial by
jury, in all cases in which it hath
heretofore been used in the colony of
New York, shall be established and
remain inviolate forever.” Similar lan-
guage was found in all the other state
constitutions as well as the charter for
the Northwest Territories.
The Constitution Controversy
After our victory in the American
Revolution, the first United States’
constitution, the Articles of
Confederation, was deemed inadequate
for the new nation. A convention was
called in Philadelphia in 1787 to draft
a new one.
After months of heated debate, a
draft was presented to the convention
on September 12, 1787. The draft
allowed trial by jury in criminal cases,
but not in civil cases. Elbridge Gerry of
65
33TBN - Spring 2011
Massachusetts cited the omission. “The
jury is adapted to the investigation of
truth beyond any other system the
world can produce. A tribunal without
juries would be a Star Chamber in civil
cases.” Gerry’s position was affirmed
and seconded by George Mason, who
argued that the document needed a Bill
of Rights to guarantee both freedom of
the press and trial by jury.
Delegates attempted to amend the
constitution to include jury trials in
civil cases. Opponents to the change
argued that it was unnecessary since the
right was preserved in the state consti-
tutions. The amendment failed on
September 15. The new United States
Constitution was signed on September
17, but it still had to be ratified by the
states. Many southern states refused to
ratify the document because it did not
include a Bill of Rights.
As the states debated ratification,
the political leaders split into two
groups—the Federalists and the Anti-
Federalists. The Federalists, led by peo-
ple like Alexander Hamilton and James
Madison, championed a strong, cen-
tralized government. The Anti-
Federalists, whose members included
George Mason, Patrick Henry and
Samuel Adams, feared that a strong
national government would overpower
the rights of the states and citizens and
advocated for a Bill of Rights. Despite
their philosophical differences on many
66
issues, there was one area on
which they agreed: the right to
trial by jury.
Alexander Hamilton
wrote, “The friends and adver-
saries of the plan of the
Convention, if they agree in
nothing else, concur at least in
the value they set upon trial by
jury; of if there is any differ-
ence between them it consists
in this: the former regard it as
a valuable safeguard to liberty;
the latter represent it as the
very palladium of free govern-
ment.”
Hamilton’s sentiment
was echoed by other
Federalists like Pennsylvanian
John Dickinson. “Trial by jury
is the cornerstone of our liber-
ty. It is our birthright; who is
in opposition to the genius of
America shall dare to attempt
its subversion?” James Madison wrote,
“Trial by jury is essential to secure the
liberty of the people as any one of the
pre-existent rights of nature.”
The Anti-Federalists, likewise, sup-
ported Hamilton’s position on trial by
jury. Patrick Henry wrote, “Trial by
jury is the best appendage of freedom.
I hope that we shall never be induced
to part with that excellent mode of
trial.” Fellow Virginian Richard Henry
Lee stated, “The right to trial by jury is
a fundamental right of free and enlight-
ened people and an essential part of a
free government.”
The Bill of Rights
Led by Anti-Federalists, many
states—including Massachusetts and
Virginia—refused to ratify the United
States Constitution unless the docu-
ment was amended to include a Bill of
Rights. Although five states had ratified
the document, Massachusetts refused
to do so until John Adams and John
Hancock brokered the Massachusetts
Compromise. The compromise
allowed the state delegates to ratify the
document with the provision the state
would lobby the U. S. Congress to
amend the document should enough
states ratify it and it became law.
Many other states debating the
issue followed the Massachusetts
Compromise, and the United States
Constitution went into effect on
March 4, 1789. Once the First
Congress was seated at Federal Hall in
New York City, its members agreed
that a Bill of Rights was needed. James
Madison, who headed the Virginia del-
egation, drafted the legislation. Based
largely on George Mason’s Virginia Bill
of Rights from 1776, it outlined the
first ten amendments to the
Constitution and was passed by
Congress on September 25, 1789. On
December 15, 1791, Virginia became
the eleventh state to ratify the constitu-
tional amendments, and the Bill of
Rights became law.
In our Bill of Rights, the 1st
Amendment guarantees, among other
liberties, freedom of the press—the
spark that had ignited the American
Revolution with the trial of John Peter
Zenger. The 6th Amendment outlines
the rights to a speedy, impartial, jury
trial in criminal cases—a right which
had ensured that Zenger had a fair trial
in front of a jury of his peers. The 7th
Amendment preserves the right to jury
trial in civil cases and reads:
“In suits at common law,
where the value in controversy
shall exceed twenty dollars, the
right of trial by jury shall be
preserved, and no fact tried by
a jury shall be otherwise re-
examined in any court of the
United States, according to the
rules of common law.”
Conclusion
In 1835 Alexis de Tocqueville, the
great 19th century political scientist
and author of Democracy in America,
wrote, “The civil jury is the most effec-
tive form of sovereignty of the people.
It defies the aggressions of time and
man. During the 16th century, the civil
jury did in reality save the liberties of
England.”
It should be the responsibility of
every American to protect his or her
7th Amendment right to trial by jury.
As U. S. Supreme Court Justice Hugo
Black wrote in 1939, “It is essential
that the right of trial by jury be scrupu-
lously safeguarded as the bulwark of
civil liberty. Our duty to preserve the
7th Amendment is a matter of high
constitutional importance.”
 Spring 2011 - 33TBN

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Verdicts and Settlements

Edited by V. Richards Ward, Jr.

- INDEX -

PERSONAL INJURY
MOTOR VEHICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
PREMISES LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
PRODUCT LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76

MEDICAL MALPRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

NEGLIGENT UNDERWRITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77

Personal Injury Injuries: The Plaintiff suffered a loss of

SETTLEMENT
Personal Injury –
Motor Vehicle
Facts/Liability: In April 2010, the
Plaintiff, a twenty-one year old under-
graduate student athlete, sustained
severe injuries, when he was struck by
the Defendant’s car while operating his
motorcycle. The Defendant had a duty
to stay awake, alert and aware while
driving, to stay in his own travel lane,
to maintain a proper lookout, to main-
tain control of his vehicle, to take rea-
sonable measures to avoid collisions,
and to otherwise operate his motor
vehicle in a reasonable manner. The
Plaintiff alleged that the Defendant
breached these duties when on the day
of the accident, he fell asleep at the
wheel while driving, crossed the yellow
lines into the Plaintiff ’s travel lane and
drove head on into our client’s motor-
cycle, causing a collision. As a result of
the Defendant’s negligence, the
Plaintiff was struck down and ren-
dered unconscious.
consciousness, as well as significant
injuries to his left lower extremity, V. RICHARDS “RICK” WARD, JR. is a solo
including a fractured femur requiring practitioner in Wolfeboro, with a satellite office in
Manchester. Attorney Ward’s practice focuses prima-
surgical intervention. The surgery rily on personal injury, workers’ compensation,
entailed internal fixation with perma- employment litigation, medical malpractice, and
nent hardware. Plaintiff also suffered a products liability.
knee injury, significant physical pain,
emotional distress, and physical limita- Specials:
tions. He had to temporarily withdraw Medical Bills: $ 46,553.18
from school and athletics. He incurred Other Expenses: $ 5,000.00 -
medical, surgical and therapy expenses, $10,000.00
as well as property damage, including Total: $51,553.18 - $56, 553.18
the destruction of his motorcycle, with
related towing, storage and disposal
Verdict/Settlement: The parties settled
costs.
their claims prior to suit being filed.
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Please submit your Verdicts and Settlements to nhaj@nhaj.org 71

33TBN - Spring 2011
Plaintiff ’s claim was settled for the
available liability policy limits.
Notably, the lien asserted by the health
insurer was reduced by forty-three per-
cent.
Plaintiff ’s Counsel:
Mark A. Abramson, Esquire
Holly B. Haines, Esquire
Abramson, Brown & Dugan
Name of Case/County:
Anonymous v. Anonymous
SETTLEMENT
Personal Injury –
Motor Vehicle
Facts/Liability: The Plaintiff, a furni-
ture delivery truck driver, was driving
his box-truck on River Road in
Manchester when a car drove through
a stop sign on his right, forcing him
72
into oncoming traffic and a head-on
collision with an oil delivery truck.
While it was not snowing at the time
of the accident, it had snowed the
prior evening with sleet and rain. The
driver who went through the stop sign
claimed that ice and snow on the road
made it impossible for her to stop as
she progressed down a slope towards
the intersection.
Plaintiff, and his wife, made claims
against the driver who drove through
the stop sign and against the Plaintiff ’s
employer’s uninsured/underinsure
motorist coverage. The UM carrier
refused to agree to allow the Plaintiff
to collect the limits of the driver’s lia-
bility policy and, instead, advanced
$100,000 to the Plaintiff. When the
parties could not agree to the extent
the other driver was liable or the
extent of damages, Plaintiff and his
wife brought a breach of contract
action against the UM carrier, as the
Please submit your Verdicts and Settlements to nhaj@nhaj.org
UM policy did not mandate arbitra-
tion.
Injuries: The Plaintiff suffered a severe
crushing injury to his right leg from
his knee to his foot, when it was
trapped by the collapsed driver’s com-
partment of his delivery truck. The
Plaintiff ’s leg was trapped for an
extended period of time while efforts
were made to cut away the crushed
truck cab. Witnesses describe the
Plaintiff as screaming in pain through-
out this period of time. In addition to
broken bones, the Plaintiff suffered
significant disruption of both his knee
and ankle joints. The Plaintiff was an
in-patient at the hospital for 14 days
which included repeat surgeries to save
the Plaintiff ’s leg. After discharge from
the hospital, the Plaintiff received
home-hospice and home-nursing care
that included anti-coagulation therapy.
The Plaintiff was non-weight bearing
on his leg for about three months and

discharged from physical therapy
about six months after the accident.
Plaintiff developed osteoarthritis in
his knee in addition to developing
chronic pain in his knee and ankle.
Plaintiff also lost significant range of
motion in his knee, lost 6-7 millime-
ters of leg length, and suffers from a
permanent, significant limp. Plaintiff
is expected to require knee replace-
ment surgery in the future. The par-
ties disagreed as to whether the
Plaintiff was permanently disabled
from future employment.
Point of Interest: The UM carrier
attempted to join a third party tort
action against the driver who caused
the accident. The Plaintiff objected,
arguing that it was inappropriate to
mix a contract and tort action; the
Plaintiff was not diverse to the driver;
the subrogation claim was not ripe;
and the insurer was unfairly attempt-
ing to imply that any award would be
a claim against the direct assets of the
individual defendant. The trial court
refused to allow the third party action
on the basis of prejudice.
Specials:
Medical Bills: $146,747.15.
Lost Wages: $42,307.20.
Potential Future
Medical Bills
and Lost wages: $750,000.00.
Verdict/Settlement: After suit was
filed in United States District Court
for New Hampshire, the parties
reached a settlement for a confidential
amount.
Plaintiff ’s Counsel:
Jeffrey B. Osburn, Esq.
David S.V. Shirley, Esq.
Name of Case/County:
Anonymous v. Maryland Casualty Co.
Please submit your Verdicts and Settlements to nhaj@nhaj.org
SETTLEMENT
Personal Injury –
Motor Vehicle
Facts/Liability: Shaun Malone was the
operator of a bicycle, which was travel-
ing in an easterly direction on Hackett
Hill Road approaching the intersection
with Countryside Boulevard in
Manchester, New Hampshire. At the
same time and place, Kathleen
Bishopric, was the operator of a motor
vehicle, which was traveling in a west-
erly direction on Hackett Hill Road.
Ms. Bishopric stated to the Manchester
Police Officer, Derek Cataldo, that she
was returning from Wal*Mart and had
come to a complete stop at the inter-
section with Countryside Blvd. After
the car in front of her made a left hand
turn onto Countryside Blvd, she put
on her left turn signal and began to
make the turn when she felt something
had “slammed” into the side of her car.
She had failed to see Mr. Malone, who
was wearing a neon, colorful shirt and
colorful helmet coming down the road,
with the right of way, in the opposite
Spring 2011 - 33TBN
direction, and pulled right in front of
him. Defendant then got out of her car
to see what had hit her car. She
claimed that she never saw Mr.
Malone’s bicycle until after she had
exited her car to see what had slammed
into her. The defendant’s insurer raised
the issue that Mr. Malone was riding
fast, based upon a witness statement,
claiming that he was negligent to some
degree. Plaintiff denied that claim.
Even at the speed that he could have
been going, approximately 25-30
mph, Mr. Malone was operating prop-
erly and within the rules of the road.
In response to the insurer’s assertions,
Plaintiff obtained the services of an
accident reconstruction team to review
the situation. Gordon “Chip”
Johnston, of The Crash Lab, a respect-
ed accident reconstruction expert,
studied the crash and rendered his
report on the incident, clearly believ-
ing that the defendant was at fault and
that Mr. Malone had the right of way.
Nature of Defense: The Defense
claimed that the Plaintiff was partially
at fault for the crash. The Defendant
73
33TBN - Spring 2011
based this assertion on the fact that the
responding police officer took a state-
ment of a witness at the scene alleging
Plaintiff was driving his bicycle fast
and was Comparatively Negligent.
Injuries: Blunt head trauma with mild
to moderate concussion. Blunt trauma
to the face with minor bruising on the
face. Blunt trauma to the upper back
with 6-7 rib fractures, right and left
with pneumothorax of the chest on the
right side. Pulmonary contusion.
Multiple abrasions and contusions to
the left thorax, shoulder, left leg, left
clavicle and upper back. Transverse
spinous process fracture of the lumbar
spine. Scapular body fracture, right.
Probable left shoulder strain.
Specials:
Total Medical Expenses: $33,444.35
Total Lost Wages: $6,019.00
Settlement/Verdict: The case settled
prior to suit being filed for
$150,000.00, at mediation with Judge
Robert Morrill.
Point(s) of Interest: The pictures of
the Plaintiff ’s bruising from his broken
74
ribs was truly shocking and made for
very good demonstrative evidence.
Plaintiff ’s Experts: Gordon “Chip”
Johnston, of The Crash Lab
Plaintiff ’s Counsel:
David M. Gottesman, Esq.
Gottesman and Hollis, PA
Case Name:
Shaun Malone v. Kathleen Bishopric
Hillsborough County
SETTLEMENT
Personal Injury –
Motor Vehicle
Facts/Liability: Plaintiff was a passen-
ger in a work truck being driven by her
husband, who was off duty, but “on
call” for his employer. The vehicle in
question had been in a previous acci-
dent and had suffered frame damage,
which caused its rear tires to wear out
rapidly. Plaintiff and her husband were
returning from an errand on a damp
road. As the vehicle passed over a dip
in the road, the husband lost control as
Please submit your Verdicts and Settlements to nhaj@nhaj.org
a result of the rear tires having no
tread. The vehicle left the roadway and
rolled, ejecting both the Plaintiff and
her husband. The Plaintiff landed in
the roadway and suffered a serious
head injury.
The Plaintiff made a claim against
the husband’s employer for negligent
maintenance of the work vehicle.
Defense: The Defendant argued that
the Plaintiff ’s husband was at least par-
tially at fault for the accident.
Injuries: The Plaintiff suffered a closed
head injury with multiple skull frac-
tures including an extensive basilar
skull fracture, orbital, frontal, clival
and occipital fractures, temporal cere-
bral contusions, subarachnoid hemor-
rhage and subdural hematoma. She
was admitted to the intensive care unit
in critical condition for monitoring
and treatment. She was hospitalized
for six days before returning home,
where she received in-home health care
over a period of approximately six
weeks. She suffered a potentially per-
manent loss of her senses of taste and
smell. She also suffered from a lack of
energy, dizziness, and occasional short
term memory deficits for a period of
several months, which was diagnosed
as post-concussive syndrome.
Specials: Medical bills: $58,663.03.
Settlement: The case settled prior to
suit for $175,000.
Plaintiffs’ Counsel:
Jason R.L. Major
Douglas, Leonard & Garvey, P.C.
Defendant’s Insurance Carrier:
Acadia Insurance
Names of Case/County:
Deborah Lawless v. Concord Housing
Authority
Merrimack County

SETTLEMENT
Personal Injury –
Premises Liability
Facts/Liability: The Plaintiff, a psychi-
atrist, slipped on a landing and hit a
railing that gave way. He fell about six
feet to the ground suffering skull, rib
and facial fractures. The Plaintiff was
not discovered for hours and became
hypothermic. He treated at Hitchcock
Medical Center and then Spaulding
Rehabilitation (Boston).
Defense: The Defendant landlord and
co-defendant tenant each had different
insurers. Each claimed the other was
responsible for the claim. They litigat-
ed a declaratory judgment action. One
insurer then settled the claim and has
filed an action for contribution against
the other. All workers disavowed
knowledge of installing the railing in
question when the facility was renovat-
ed months before the fall.
Injuries: The Plaintiff suffered a per-
manent brain injury, fractures of the
skull, orbit, and ribs.
Specials: $300,000 in medical bills.
Settlement: The case against settled
for $1.715 million.
Points of Interest: Current litigation
between the Defendants’ insurers
focuses on the “reasonableness” of the
settlement. Philadelphia Insurance
claims its settlement was reasonable.
John Garvey is its expert. Acadia
Insurance, to avoid contribution,
claims the settlement was unreason-
able. Its expert is Bill Mulvey.
Plaintiff ’s Counsel:
Andru Volinsky, Esq.
Bernstein Shur
Defense Counsel:
Paul Kleinman, Esq.
Please submit your Verdicts and Settlements to nhaj@nhaj.org
Doreen Connor, Esq.
Debra Mayotte, Esq.
Catherine Costanza, Esq.
Name of Case/County:
Wyly v. DW Ray, LLC, et al
SETTLEMENT
Personal Injury -
Premises Liability
Facts/Liability: The Plaintiff was a
woman in her late forties and a cancer
survivor with a history of a 2001
stealth-guided left craniotomy and
associated permanent neurological
deficits. Following her brain-
surgery/cancer-treatment, the Plaintiff
had slowly reducing capabilities and
developed balance problems. She gen-
erally had supervision, by her spouse
or retained nursing assistants. She
attended adult day-care for supervi-
sion and socialization. A condition of
the Plaintiff being allowed into a new
day care program was that she must
attend the program with her walker.
The Plaintiff, while attending her
first day at the new day care facility, was
allowed to go outside the facility, unsu-
pervised, to smoke. The smoking area
was located on the edge of the parking
lot some 50 feet from the entryway. In
Spring 2011 - 33TBN
order to sit at a picnic table or to deposit
cigarettes in the “butt can” provided, the
Plaintiff was required to step up over a
curb and walk on a short, sloped,
unpaved area. The unsupervised
Plaintiff was found lying unconscious,
on her back, on the parking lot with her
feet adjacent to the curb.
Plaintiff instituted suit against the
Defendant/adult day-care provider,
asserting negligence for its failure to
appropriately evaluate the Plaintiff
before allowing her to be unsupervised,
for failing to have any protocols in place
for the supervision of patrons in the
smoking area, and for failing to have a
smoking area which was safe for handi-
capped persons. Plaintiff ’s spouse
brought a loss of consortium claim.
Injuries: The Plaintiff suffered a trau-
matic brain-injury. She was immediate-
ly hospitalized and placed in intensive
care. Ultimately, the Plaintiff was dis-
charged to nursing home care for the
rest of her life. She was left unable to
walk and has difficulty communicat-
ing. For the two years subsequent to
her injury and prior to her death, the
Plaintiff remained primarily cognitive-
ly unresponsive and could not eat with-
out significant assistance. Throughout
this time, Plaintiff ’s husband contin-
ued to visit her on a daily basis.
75
33TBN - Spring 2011
Specials:
Medical Bills Exceeded: $450,000.
Verdict/Settlement: After suit was filed
in New Hampshire Superior Court, the
parties reached a confidential settle-
ment which included negotiating the
Medicare and Medicaid liens.
Plaintiff ’s Counsel:
Jeffrey B. Osburn, Esq.
Joseph F. McDowell, III, Esq.
Name of Case/County:
Anonymous v. Anonymous,
Hillsborough County Super. Ct.
SETTLEMENT
Personal Injury -
Product Liability
Facts/Liability: The Plaintiff, a twenty-
six year-old mother, was working on a
large mail-inserter machine, when her
hair caught on a rotating, horizontal
drive-shaft. The Plaintiff, who was
pregnant with her second child, was
unable to free herself and her screams
for help were not heard over the loud
machines in operation. As a result,
about two-thirds of her hair and scalp
were slowly torn off down to the bone.
The Plaintiff remained conscious for
the entire event and had to seek out
help from nearby workers before she
could receive medical assistance.
Plaintiff brought suit against the
manufacturer of the machine claiming
a defective design for the lack of guard-
ing around the horizontal drive-shaft.
Defense: The Defendant asserted the
employer was primarily at fault and
that its machine was not defective. The
Defendant further denied that it was
the manufacturer of the machine and
that, if it was, the machine had been
substantially modified such that it was
no longer in its original condition.
Complicating liability was the fact that
76
the machine was probably manufac-
tured sometime in the 1950s or early
1960s and it lacked identifying docu-
ments or machine serial number.
Injuries: Because the Plaintiff ’s scalp
was mangled by the machine it could
not be re-attached. As a result, the
Plaintiff underwent a series of opera-
tions to expand her remaining hair-
bearing scalp. At the conclusion of
these operations, the Plaintiff was left
with approximately 40% of her scalp
covered only by a skin graft that could
not grow hair. The area of skin graft
had no surviving nerves so there was a
permanent loss of feeling. The skin
graft must be treated daily with mois-
turizing cream and must be kept cov-
ered when outside, without pressure, to
avoid skin burn, insect bites and other
problems. The skin graft is also subject
to cracking, splitting and infection.
The loss of scalp flesh resulted in
damaged nerves and reduced fluid
management. As a result, the Plaintiff
has constant nerve pain along the edges
of the skin graft that is made worse by
sleeping on a bed. The Plaintiff also
suffers periodic swelling around one
eye and one ear which adversely affects
her vision and hearing.
Because of the nature of the acci-
dent and resulting permanent disfigure-
ment, the Plaintiff suffers from signifi-
cant post-traumatic stress disorder and
anxiety related problems that are height-
ened around any kind of machinery.
The Plaintiff continues to self groom
and self care. As such, she is unlikely to
fully recover from her psychological dis-
orders and will likely be unemployable
for the remainder of her life.
Specials:
Past Medical Bills: $178,822.80
Future Medical Bills: $253,000
(present value estimate).
Loss of Future Earnings: $550,582 to
$820,414
(present value estimate)
Verdict/Settlement: After a diversity
Please submit your Verdicts and Settlements to nhaj@nhaj.org
suit was filed in U.S. District Court,
District of New Hampshire, the parties
reached a confidential global settle-
ment in which the workers’ compensa-
tion carrier participated.
Plaintiff ’s Counsel:
Jeffery B. Osburn, Esq.
David S.V. Shirley, Esq.
Name of Case/County:
Anonymous v. Anonymous
Medical
Malpractice
SETTLEMENT
Medical Malpractice
Facts/Liability: The fifty-one-year-old
male Plaintiff was treated by the
Defendant internist for severe rectal
pain and itching. The Defendant made
an assessment of hemorrhoids, based
on the Plaintiff ’s description of symp-
toms, without performing an ano-rec-
tal exam, and prescribed topical
creams. Due to worsening symptoms,
the Plaintiff returned to the
Defendant’s office two days later.
Again, the Defendant did not examine
the affected area. The Defendant
instead ordered an abdominal x-ray.
That x-ray revealed no abnormalities,
but the Defendant did nothing further
in order to arrive at a definitive diagno-
sis. As a result, the Plaintiff ’s subcuta-
neous infection of his peri-rectal area
progressed and expanded, becoming a
life-threatening form of necrotizing
fasciitis called Fournier’s Gangrene,
which invaded his scrotum.
Defense: The Defendant agreed that
the standard of care required an ano-
rectal exam on both visits to the
Defendant’s office, but alleged that the
patient refused to permit such an

examination. The Defendant made this
assertion despite the fact that the med-
ical records made no mention of any
such recommendation and refusal, and
there were no witnesses to support the
Defendant’s assertion.
Injuries: Plaintiff suffered from
Fournier’s Gangrene. He required fif-
teen surgical procedures, including a
transverse diverting colostomy, numer-
ous skin debridements and skin grafts.
Specials (if any):
Medical expenses: $276,644.07
Lost wages: $20,331.16
Verdict/Settlement: The case settled
during mediation for a confidential
amount.
Plaintiff ’s Counsel (please include
name and firm):
Randolph J. Reis, Esq.
Reis Law, PLLC
Name of Case/County:
Anonymous v. Anonymous
Please submit your Verdicts and Settlements to nhaj@nhaj.org
Negligent
Underwriting
SETTLEMENT
Insurance –
Negligent Underwriting
Facts/Liability: The Plaintiff, a widow
with a minor child, was denied life
insurance benefits on a $500,000 life
insurance policy when her husband
died. The decedent applied for the life
insurance in April 2006 after passing
an annual physical by his PCP. By the
end of April he had also passed a para-
medical exam, including blood draw,
ordered by the life insurance company.
The life insurance company failed to
issue the policy until July 2006.
At the end of June 2006, the dece-
dent developed symptoms consistent
with hepatitis and was later diagnosed
with pancreatic cancer shortly before
delivery of the policy. The agent selling
Spring 2011 - 33TBN
the policy did not take a binder with the
application, and did not inquire about
continued good health when the policy
was delivered. The decedent died a year
later and the life insurance company
refused to pay the death benefit.
Plaintiff brought suit against the
life insurance company, the brokerage
company assisting with the underwrit-
ing and the local agent claiming negli-
gent delay in underwriting, negligence
for failure to bind, and breach of con-
tract. Discovery confirmed that the
decedent was initially approved with
regard to medical underwriting on May
5, 2006, but that various errors and
oversight lapses resulted in delays in
issuing the policy. At the time, the aver-
age turn around from application to
issuance of a policy was 45 days for the
life insurance company and the dece-
dent was fully insurable had the policy
been issued in a timely manner.
Injuries/Specials: The harm to the
Plaintiff was the loss of the $500,000
death benefit plus interest from the
date of death.
Verdict/Settlement:
After suit was filed
in State superior
court, the parties
reached a confiden-
tial global settle-
ment with respect to
the Plaintiff ’s
claims.
Plaintiff ’s Counsel:
David S.V. Shirley,
Esq.
Name of
Case/County:
Anonymous v.
Anonymous
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78 Please submit your Verdicts and Settlements to nhaj@nhaj.org

 Spring 2011 - 33TBN

ERIC M. SOMMERS, ESQ.

ERIC M. SOMMERS, ESQ., is the principal of
Sommers Law, PLLC, concentrating on business and
intellectual property litigation, trademark, copyright,
internet law and privacy matters, and domestic rela-
tions. He is a graduate of the University of Vermont and
The Ohio State University Moritz College of Law,
where he served as an editor to the Ohio State Journal
on Dispute Resolution and is admitted to practice in
New Hampshire, Massachusetts and Rhode Island.
He received a NHBA Distinguished Pro Bono Service
Award in 2010 for his work as a DOVE attorney.

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Ne w H am p s h i r e ’ s l e ad i n g M e d i c a l M a lp r a c t i c e f i r m .
Abramson, Brown & Dugan
Abramson, Brown and Dugan is the premier
medical malpractice firm in New Hampshire. The
firm has obtained over $250 million in settlements
and verdicts for their clients. Abramson, Brown &
Dugan is proud to announce that once again, Mark
Abramson and Kevin Dugan have been named to
the 2010 edition of
Best Lawyers®, the
oldest and most
respected peer-review
publication in the legal profession. Mark has been
named to this publication every year since 1994,
and was named “Lawyer of the year” in 2009.
Kevin has enjoyed Best Lawyer distinction for each
of the past 6 years.
84
Mark and Kevin have also been named by
New England Super Lawyers® as two of the top
attorneys in New England for 2010 in the
Malpractice and Personal Injury categories. This
is the forth consecutive year that the pair has earned
this distinction. In addition, Holly Haines has been
selected for inclusion in
New England Super Lawyers®
as a Rising Star for the third
year in a row.
If you or a loved one has a potential medical
malpractice or serious injury claim, contact
the lawyers of Abramson, Brown and Dugan.
Working together for your client
1819 Elm Street
Manchester, NH
Ph: 603-627-1819
Fax: 603-666-4227
www.arbd.com
Referral fees honored
 Spring 2011 - 33TBN

KEVIN F. DUGAN, ESQ. JARED R. GREEN, ESQ.

KEVIN F. DUGAN is a partner and JARED R. GREEN is an associate at Abramson, Brown & Dugan in
Manchester, NH. Their firm’s practice focuses on representing plaintiffs in personal injury and medical malpractice lit-
igation. Attorney Dugan received his JD from Stetson Law School in 1985. Attorney Green received his JD from
Franklin Pierce Law Center in 1993. Both are members of the American Association for Justice.

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Robert S. Peck, Esq. and Jeffrey R. White, Esq.
The current U.S. Supreme Court
appears to find the issue of preemption
endlessly fascinating, having taken five
cases this term that raise the issue. A
day after finding that the federal vac-
cine program preempts tort claims
based on defectively designed vaccines,
the Court unanimously ruled that pre-
emption does not prevent claims
against car manufacturers for failing to
incorporate a shoulder belt into rear
middle seats. The back and forth
approach that the Court has taken to
preemption is difficult to harmonize,
suggesting that the subject will return
again and again to the Court’s docket.
In addition, this month’s cases cover
state supreme courts in Arizona and
Missouri that expanded plaintiffs’
rights to bring actions to court, as did
a federal district court in Alabama.
Supreme Court Narrows “Obstacle”
Preemption. In Williamson v. Mazda
Motor of America, Inc., 2011 WL
611628 (U.S. Feb. 24, 2011), the U.S.
Supreme Court clarified the limits of
implied “obstacle” preemption of state
tort remedies, .
Thanh Williamson was fatally
injured when her family’s 1993 mini-
van was struck head-on. Her family’s
product liability suit alleged that the
rear center seat in which she was riding
was unreasonably dangerous because it
was equipped with a lap-type seat belt,
rather than the safer lap/shoulder type.
A California trial court dismissed the
action as preempted by Federal Motor
Vehicle Safety Standard 208, which in
1993 gave automakers the option to
equip cars with either type of seat belt
in the center, non-window position.
The state appeals court affirmed, rely-
ing on Geier v. American Honda Motor
Co. (2000), where the Supreme Court
held that a regulation giving car mak-
ers the choice of using air bags or some
National Perspective
by
other passive restraint system preempt-
ed a lawsuit based on failure to equip
autos with airbags. The Supreme
Court in an 8-0 decision reversed.
Justice Breyer wrote for the Court
that, in Geier, manufacturer choice was
a “significant objective of the federal
regulation.” Holding a manufacturer
liable for choosing an option offered
by the regulation could be deemed an
obstacle to that objective. In this case,
however, there was no indication that
the Department of Transportation
viewed a mixture of belt types as an
important objective. Instead, the lap
belt requirement was only a “mini-
mum standard.” Moreover, Congress
envisioned a “continued meaningful
role for state tort law” in requiring
greater safety, the Court said. Justice
Sotomayor wrote separately “to
emphasize the Court’s rejection of an
overreading of Geier” under which
lower courts found preemption of tort
liability “any time an agency gives
manufacturers a choice between two or
more options.” She further stressed
that the decision makes clear that
other federal regulations prescribing
only minimum safety standards do
not, without more, preempt state caus-
es of action that allege failure to use
additional precautions. Justice Thomas
also concurred separately, reiterating
his rejection of “obstacle” preemption
as based “entirely on extratextual ‘judi-
cial suppositions.’”
Claim for Minor’s Medical Expenses
Belongs to Both Child and Parents.
The Arizona Supreme Court in Estate
of DeSela v. Prescott Unified School Dist.
No. 1, 2011 WL 134917 (Ariz., Jan.
18, 2011), overturned a common-law
rule that could present a trap for the
unwary attorney representing an
injured minor.
Spring 2011 - 33TBN
ROBERT S. PECK, ESQ. is president of the Center
for Constitutional Litigation, P.C. and argues constitu-
tional cases in the U.S. and the state supreme courts.
JEFFERY R. WHITE, ESQ. is Senior Counsel for the
Center for Constitutional Litigation, P.C.
Maddison DeSela was 15 years old
when she was severely injured while
taking part in a high school theater
rehearsal. Maddison’s mother assigned
to Maddison all claims for medical
expenses incurred after the accident.
One year after Maddison’s 18th birth-
day, her estate filed a personal injury
suit against the school district. The
trial judge dismissed the claim for
medical expenses as barred by the one-
year statute of limitations. The court
of appeals reversed, holding that,
although the medical claim belonged
to the mother, the assignment to
Maddison was valid and her cause of
action was timely under a provision
tolling the limitations period until one
year after an injured minor’s eigh-
teenth birthday. The school district
appealed, arguing that an assignee can-
not obtain greater rights than the
assignor of a cause of action.
The Arizona Supreme Court
vacated the appeals court opinion and
reversed the trial court’s judgment on a
different ground. Sidestepping the
assignment issue, the court overturned
Arizona’s common-law rule, followed
by the great majority of states, that a
tort cause of action for medical expens-
es of a minor, as well as for impairment
of earning capacity during infancy,
belongs solely to the parent. In the
court’s view, this purely economic view
of the parent-child relationship, analo-
gous to that of master and servant, “is
clearly antiquated and long overdue
for judicial burial.” The court held
instead that the “chose in action”
belongs to both the parent and the
child, though only one recovery may
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be obtained. Thus Maddison’s claim for
medical expenses was timely filed
under the statute of limitations for
injury to minors. The court also indi-
cates that its holding also applies to the
statutory requirement that notice of a
claim against a public entity be given
within 180 days, but which is extended
for minors until 180 days after the
minor’s eighteenth birthday.
Arbitration Agreement Signed by
Decedent Does Not Bar Wrongful
Death Action. In Entrekin v. Internal
Medicine Associates of Dothan, P.A.,
2011 WL 166696 (M.D. Ala., Jan. 19,
2011), a federal district court under-
scores the principle that an agreement
to arbitrate can only bind the parties to
that agreement.
Following her heart attack, Mrs.
Entrekin entered a nursing home that
provided medical care. The physician
there altered her prescribed medication
to lower her dosage of the blood thin-
ner Coumadin. The doctor continued
that dosage, despite test results indicat-
ing that Mrs. Entrekin’s level of anti-
coagulants was insufficient. Ten days
after her arrival at the nursing home,
she died of a myocardial infarction
92
caused by a blood clot. Her son, as per-
sonal representative, brought suit
against the nursing home and the doc-
tor. Defendants moved to compel arbi-
tration, based upon a document signed
by Mrs. Entrekin upon admission,
agreeing to arbitrate any cause of action
Mrs. Entrekin or her “estate, succes-
sors, assigns, heirs, [or] personal repre-
sentatives” might have against the
home or its employees.
District Judge W. Keith Watkins
denied the motion. The court noted
that a wrongful death cause of action
arises upon the death of the decedent
and belongs to the personal representa-
tive. Alabama courts have enforced
arbitration of wrongful death claims
against nursing homes only where the
personal representative has signed the
agreement to arbitrate. The court did
not decide whether one who will
become the personal representative
may be bound by an agreement signed
while decedent is still alive. In this case,
the wrongful death cause of action
never belonged to Mrs. Entrekin, and
the personal representative never
signed the arbitration agreement.
Arbitration is a matter of contract, the
court observed, and thus “a party can-
not be required to submit
to arbitration any dispute
which he has not agreed
so to submit.”
The district court’s
decision is in line with
that of the Ohio Supreme
Court in Peters v.
Columbus Steel Castings
Co., 873 N.E.2d 1258
(Ohio 2007), that the
widow of a deceased
worker was not obliged to
arbitrate her wrongful
death action by an agree-
ment signed by the dece-
dent. Our law firm, CCL,
represented the widow
before the Ohio Supreme
Court.
Plaintiff in Wrongful Death
Action Alleging Medical Malpractice
Need Not Prove That Patient’s Suicide
Was the Product of Insanity or
Irresistible Impulse. Kivland v.
Columbia Orthopaedic Group, LLP, ___
S.W.3d ___, 2011 WL 265201 (Mo.,
Jan. 25, 2011), arises out of a wrongful
death action against a surgeon and his
employer. Plaintiffs alleged that defen-
dant’s negligent spinal surgery left
Gerald Kivland paralyzed from the
waist down and in continuous and
extreme pain. After more than a year,
during which efforts to alleviate his
pain failed, Kivland shot himself to
death. The trial court granted defen-
dants’ motion for partial summary
judgment on the wrongful death claim
by Kivland’s widow and daughter, rul-
ing that his suicide was an intervening
cause of his death, unrelated to defen-
dant’s negligence as a matter of law.
The Missouri Supreme Court
reversed. The court clarified a 1963
precedent which indicated that a plain-
tiff in such a case could only establish
causation by showing decedent was
insane and committed suicide as a
result of an “irresistible impulse.”
Justice Michael A. Wolff, writing for
the court, pointed out, “Modern psy-
chiatry supports the idea that suicide
sometimes is a foreseeable result of
traumatic injuries.” The court adopted
the more recent trend, which places less
emphasis on the decedent’s mental
state and more on the question
whether defendant’s actions directly
caused or contributed to decedent’s sui-
cide. In this case, plaintiffs proffered
expert testimony by a board-certified
psychiatrist with experience and train-
ing in diagnosing and treating patients
similar to Kivland. The court found
that the expert’s opinion that Kivland’s
suicide was the direct result of the
extreme pain caused by the surgery was
admissible and was sufficient to create a
question for the jury.

Low-Cost Technology Resources for Trial Lawyers
In past editions, we have highlighted free software for electronic bates stamping, PDF creation, and screen capturing, as
well as a free service for exchanging discovery files online.1 This article will focus on several more useful, free programs.
Software/Service Function
Google Scholar Research case law
FreeMind Brainstorming software
Google Docs OCR function copies text from PDF
Fastcase Research case law
Google Scholar
For the last several months,
Google Scholar has included an option
for searching “legal opinions and jour-
nals.” Google announced the free serv-
ice on its blog, noting the expansion
would “enabl[e] people everywhere to
find and read full text legal opinions
from U.S. federal and state district,
appellate and supreme courts.”2
This free service is incredibly fast,
and those who are familiar with con-
ducting natural language Google
searches will find searching Google
Scholar to be very easy to use. Searches
can be limited by jurisdiction and
other particulars in the “Advanced”
search options.
Among its major drawback at this
time, verifying that a case is still “good
law” must be done manually, by
reviewing all citing cases, sorting by
date. This is because Google Scholar
lacks a service akin to Lexis’ Shepards
or West’s Keycite. Moreover, Google
does not guarantee it will pick up all
citing cases, and its searches do not
include statutes, only case law.
Nevertheless, many attorneys may find
Google Scholar useful, given these
characteristics:
• A researcher can find cases either
by reference to a case cite or by
searching the words/phrases used
in the opinion.
• The Google Scholar database con-
tains case law for most of the 1900s
up to the last few months, and
appears to be updated regularly.
by Travis Little, Esq.
Base Cost Platform
Free Web
Free Windows/Mac
Free Web
Free iPhone/iPad
• Each case contains a “How Cited”
tab, listing subsequent holdings,
and summarizing the major points
of law from the case (similar to the
headnotes available through Lexis
and Westlaw).
• Cases cited within opinions are
hyperlinked for convenient brows-
ing and cross-referencing.
Additionally, on July 1, 2010,
Google added the option of searching
only within cases and articles citing to
a selected case.3 The program is free
and is accessible from any device with
an internet browser at: http://
www.scholar.google.com.
FreeMind
In litigation and at trial we deal
with mountains of information. Many
of us are better able to organize our
thoughts when we can do so visually.
FreeMind is a free digital brainstorm-
ing program available for Windows and
Mac. FreeMind is useful for mapping
out anything from voir dire and open-
ing statements to witness examination
questions and closing arguments. The
program permits lawyers to diagram
their litigation strategy or their argu-
ments for any given motion, all in a
clean and organized layout.
FreeMind is available for download
for free at: http://freemind.source-
forge.net. Of note to iPhone and iPad
users, the program is fully compatible
with ThinkingMap, a 99¢ app available
through Apple’s iTunes store.
Spring 2011 - 33TBN
Find Online at:
http://scholar.google.com
http://freemind.sourceforge.net
http://docs.google.com
http://fastcase.com/iphone
Google Docs
Google Docs has been around for
several years. Anyone with a Gmail or
other Google account can access the
service. However, Google has recently
added a very nice feature to this free
program: Free PDF to text conversion.
To enjoy this new feature, login at
http://docs.google.com. Choose
“Upload,” then on the subsequent
screen, make sure to check the box for
“Convert text from PDF or image files
to Google Docs documents.” Google
explains, “Optical Character
Recognition (OCR) lets you extract
text from images using automated
computer algorithms. Images can be
TRAVIS LITTLE, ESQ.
TRAVIS LITTLE, ESQ., is a graduate of the
University of Kentucky College of Law and Brigham
Young University, and focuses his practicec on represent-
ing injured plantiffs and their families at the Kenner
Law Firm in Marietta, Georgia.
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33TBN - Spring 2011

processed individually (.jpg, .png, and
.gif files) or in multi-page PDF docu-
ments (.pdf ).”4
Text conversions are slow, and file
size is limited to 2 megabytes and 10
pages for PDFs and other images.
However, there do not appear to be any
other free services offering PDF to text
conversions of the quality that Google
Docs provides. This service will save
your legal staff time and tedious retyp-
ing. And for that, they may thank you.
Check it out: htt://docs.google.com.
Fastcase
iPhone and iPad users may be
interested in the Fastcase App, selected
by the American Association of Law
Libraries as its 2010 “New Product of
the Year.”5 From the Fastcase website:
Have you ever found yourself in a
courtroom hallway preparing for oral
argument and wishing that you could
search for a few more cases? Would you
like to be able to log some legal
research time during your subway or
bus commute? How about double-
checking a statute provision before
walking into a client meeting or a set-
tlement negotiation?6
Most trial lawyers will find them-
selves in one of these situations at some
point. Fastcase provides mobile access
to reported cases and unannotated
statutes for most states, including New
Hampshire.
Fastcase’s desktop search is a paid
service, but the iPhone and iPad prod-
ucts are being offered for free. To be
sure, Lexis and Westlaw have mobile
search options as well: Lexis offers an
iPhone app through the iTunes store,
and Westlaw has a mobile website,
http://wl-w.com. However, these
require paid subscriptions. The
Fastcase app is great for exactly what it
is designed to provide: Smart, mobile
legal research. Check it out at
http://fastcase.com, or download from
the Apple iTunes store.
Whether you are a lawyer in a
small firm looking for technology to
reduce expenses, or just want a quick
solution to a problem (that happens to
be free), I encourage you to check out
these programs and utilize those that
you find effective.
END NOTES
1. See Travis Little, Inexpensive Software for Litigation,
TRIAL BAR NEWS, Summer 2010, at 139-141.
2. Anurag Acharya, Finding the laws that govern us,
Official Google Blog, Nov. 17, 2009,
http://googleblog.blogspot.com/2009/11/finding-
laws-that-govern-us.html.
3. James Connor, Search within citing articles, Google
Scholar Blog, Jul. 1, 2010,
http://googlescholar.blogspot.com/2010/07/searc
h-within-citing-articles.html.
4. Uploading and exporting: Uploading image files
with text to Google Docs,
http://docs.google.com/support/bin/answer.py?an
swer=176692&hl=en.
5. AALL Awards 2010 New Product of the Year Award
to Fastcase for iPhone Research App, PRWeb, Jul. 1,
2010, http://www.prweb.com/releases/AALL-
Aw a r d - Fa s t c a s e / P r o d u c t - O f - T h e - Ye a r -
2010/prweb4214844.htm.
6. See http://www.fastcase.com/iphone/.

Congratulations to the Following

Recent Award Recipients!
David M. Gottesman
Gottesman & Hollis
Recipient of the Annual Ted Jordan Humanitarian Award

Holly Haines
Abramson, Brown & Dugan
Recipient of the 2010 Robert E. Kirby Award

Kirk C. Simoneau Corey F. MacDonald

Nixon, Raiche, Vogelman, Barry, MacDonald Law
Slawsky & Simoneau
Recipients of the 1+ V³8QGHU)RUW\´'LVWLQFWLRQ

94
 Spring 2011 - 33TBN

A Review of Attorney Robert A. Shaines’ Command

Influence, A Story of Korea and the Politics of Injustice
by Paul McEachern, Esq.
Attorney Bob Shaines’ award win- characters became permanently shaped
ning book: Command Influence, A by the injustice of the time.
Story of Korea and the Politics of Author Shaines was a 23-year-old
Injustice views the Korean War from a Air Force JAG officer and Lt. George
first hand perspective. Kirkus Reviews, C. Schreiber was a 25-year-old Air
a leading reviewer, in its review of Police Commander charged with the
Shaines’ book said: “... despite the best defense of the largest munitions dump
efforts of writers like David in South Korea during the Korean War.
Halberstram, that conflict remains a Schreiber and two of his men had
shadowy affair, Shaines draws it, assid- become pawns in a power game among
uously and with conviction as a mur- ambitious men anxious to advance next book, A Time of Peace, a work of
derous corrupt enterprise, a cold war their own military careers. Command fiction based upon his experiences
folly of dreadful alternatives...” influence was pervasive in the military working for the Defense Nuclear
The story unfolds as a window on justice system at that time and is still Agency in the former Soviet Union in
the tragedy of war and reads like a persists in some venues today. Since the the early 1990s assisting with the
novel telling of how two young dedi- appointing authority ordering the trial implementation of the Cooperative
cated Air Force officers, became of a military accused also appoints the Threat Reduction Treaty.
involved with momentous internation- court members and counsel, it is the
bane of justice in the military. ROBERT A. SHAINES, ESQ., is a practicing attorney
al political events in war torn Korea. with the firm of Shaines & McEachern in Portsmouth,
These events changed the course of As Simon Barrett Reviews said of NH. He lives in Rye with his wife Denise. He has two
both of their lives. Lt. George Schreiber Shaines’ book: “Command Influence is daughters and three grandchildren. He was awarded the
Korean service medal in 2010 by the President of South
was charged with and convicted of pre- written from the heart. I don’t give stars Korea. He was awarded two bronze stars during his serv-
meditated murder; the other, Bob like other reviewers, but if I did my ice in the Korean War.
advice would be to step outside on a This book is available at barnesandnobel.com and
Shaines, was Schreiber’s military amazon.com in hard or soft cover and eBook format.
defense counsel. Ultimately the matter clear night and look upwards.”
would involve the President of the Shaines is currently writing his
United States, the United States
Supreme Court, powerful U.S.
Senators, the nationwide press, the
Governor of Illinois, the American
Legion, the AFL-CIO and thousands
of people protesting the trial and con-
viction of Lt. Schreiber.
From these same events, the
Supreme Court in the case of Toth v.
Quarles, 350 US 11 determined the
limits of military jurisdiction over non
military persons. That decision is rele-
vant today and is cited in almost every
subsequent federal court decision deal-
ing with the limits of military jurisdic-
tion to try terrorist detainees.
Shaines own conscience prompted
him to explore and capture the remark-
able events of this story and as he did
so, he came to understand that both he
and Schreiber were two naive and
young fellow officers whose lives and

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2010-11 MONTHLY CONTRIBUTORS

Monthly contributors support the political action committees of both NHAJ and AAJ through
electronic transfers (of either $60, $100, $150 or $300/month).

Mark A. Abramson Abramson, Brown & Dugan

Stephen C. Brown Law Offices of Stephen C. Brown
William T. Burdin Attorney at Law
Paul W. Chant Cooper Cargill Chant
Paul R. Cox Burns, Bryant, Cox, Rockefeller & Durkin
David P. Cullenberg Cullenberg & Tensen
R. David DePuy McLane, Graf, Raulerson & Middleton
Kevin F. Dugan Abramson, Brown & Dugan
David M. Gottesman Gottesman & Hollis
Scott H. Harris McLane, Graf, Raulerson & Middleton
Ralph F. Holmes McLane, Graf, Raulerson & Middleton
James F. Lafrance 1RUPDQGLQ&KHQH\ 2·1HLO
Joseph W. MacAllister, Jr. Gawryl & MacAllister
Maureen Raiche Manning Law Offices of Manning & Smith
Michael S. McGrath Upton & Hatfield
Paul M. Monzione Law Offices of Paul M. Monzione
Leslie C. Nixon Nixon, Raiche, Vogelman, Barry, Slawsky & Simoneau
James A. Normand Normand & Associates
$*2·1HLO-U 1RUPDQGLQ&KHQH\ 2·1HLO
Edward W. Richards Edward W. Richards & Associates
Gary B. Richardson Upton & Hatfield
Jeffry A. Schapira Schapira Professional Association
Christopher J. Seufert Seufert Professional Association
Arend R. Tensen Cullenberg & Tensen
Thomas R. Watson Wiggin & Nourie

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2010-2011 Sustaining Contributors

Sustaining contributors pay an annual amount of $250 to support core services not fully supported
through dues revenue. and programming.

Mark Abramson David Gottesman James Normand

Patti Blanchette Charles Grau 3DWULFN2·'D\
Michael Atkins Jared Green A.G. O'Neil
Eva Bleich Jamie Hage Arthur Perkins
Philip Bonafide Holly Haines Michael Rainboth
Stephen Borofsky Lisa Hall Randolph Reis
Antje Bourdages Bobbie Hantz Edward Richards
Michael Bowser Scott Harris Gary Richardson
Barney Brannen Maureen Higham Mark Rufo
Steven Bunker Ralph Holmes Ryan Russman
Heather Burns Mark Howard Matthew Serge
Peter Callaghan Lauren Irwin Christopher Seufert
Conrad Cascadden John Kenison Robert Shaines
Paul Chant Margaret Kerouac David Shirley
Christine Craig Emmanuel Krasner Edward Stewart
Thomas Craig James Lafrance Shawn Sullivan
David Cullenberg John E. Lyons, Jr. Howard Swartz
Paul DeCarolis Maureen Raiche Manning Robert Upton, II
David Depuy Rebecca McBeath Laurel Van Buskirk
Charles Donahue Michael McGrath Jean VanKuren
Kevin Dugan Erland McLetchie Andru Volinsky
Richard Fradette Dawnangela Minton Thomas Watson
Robert Gilbert Paul Monzione Peter Webb
John Gillen Julie Moore Finis Williams
Stephen Goldman D. Michael Noonan

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97
33TBN - Spring 2011
The Jeopardy-winning computer
wants your job. You may have seen it
on television in late February, beating
the pants off two human former
champions. It was emotionless, quick
and thorough. It had a huge database
of facts, and it sifted through them in
micro-seconds to see patterns and
connections. Then it analyzed the
ambiguities of the English language
(and the intentional word-play of
Jeopardy question writers) to come up
with the correct answer about 95 per-
cent of the time. And it could press
the ring-in buzzer much faster than
human thumbs.
It was entertaining man-versus-
machine competition. But the impli-
cations are much more daunting. The
IBM-developed computer (named
Watson) demonstrated an ability to do
a lot of what you do, and potentially
better, and faster, and at a cheaper
price.
For decades, computers have been
good at doing drudge work. They can
deal with the same type of problem or
question endless times without fatigue
or boredom. They can perform math-
ematical computations nearly flawless-
ly, very rapidly, and without rest. They
make great brains for the robot bodies
that work on perpetual factory assem-
bly lines. Through the use of comput-
ers, the “efficiency” of the workforce
has exploded. And if that meant com-
puters displaced some humans who
formerly did those drudge jobs, well,
that’s the cost of progress, right?
Did you think their advance
would never rise above the manufac-
turing floor? Now, much high-level
work is either computer-aided or done
by the machines alone—drafting com-
puter chips, analyzing loans, trading
stocks, engineering buildings, diag-
nosing illness, detecting fraud.
I am sure you probably thought
98
I.B.M. Watson, Esq.
By Martin R. Jenkins, Esq. © 2011
your job was safe from any such com-
puter takeover. After all, you had to
study years beyond college just to get
the chance to take the bar exam. You
had to study ethics, for goodness’
sake. A machine might replace your
secretary, but how could it do what
lawyers do?
Consider what a lot of lawyering
is these days. Maybe not in your prac-
tice, but for many it is document
review. The expanded rules of discov-
ery, and especially electronic informa-
tion disclosure, means that many
lawyers spend days and months and
years just looking at pages and making
a quick decision whether it is privi-
leged or not, and whether it has any-
thing to do with a particular topic.
And that work is billed to the client at
hundreds of dollars per hour.
Now think again about computer
Watson. Isn’t that document-review
work of scanning, considering and
connecting just exactly what it was
built to do? While the initial cost to
build the first Watson might be high,
the operating expense must be mini-
mal. As the technique is perfected and
replicated, the costs will drop, and
soon every law firm can have its own
digital paralegal. It would be fast and
work around the clock without
fatigue. It would not do mere word-
search, but could see patterns and
themes. Its memory is better than
yours, and spotting inconsistencies is
one of the easiest tricks it performs.
And if a computer can do docu-
ment review, what other attorney tasks
could it perform? Drafting documents
such as wills or contracts based on
client input would be simple. (Heck, a
bunch of websites do that already.)
Researching a legal question would be
well within Watson’s ability. Drafting
interrogatories, even taking deposi-
tions might be possible. What’s left?
MARTIN R. JENKINS, ESQ.
MARTIN R. JENKINS (Attorney at Law, Concord)
received his JD from Boston University School of Law in
1978. He is a Past President of NHTLA, as well as for-
mer Hillsborough County Governor and Chair of the
Membership Committee. He has chaired NHTLA’s
Amicus Committee and the New Hampshire Bar
Association’s Workers’ Compensation Section. He is a
member of the American Association for Justice. Attorney
Jenkins is Counsel to the NH Department of Labor.
Client schmoozing? Golfing might be
tough, but remembering birthdays
would be easy.
We all like to think that creativity
counts. Organic beats mechanical.
Thought transcends brute-force num-
ber crunching. But if computers can
beat the best chess players in the
world, what does it matter? The
human may be elegant and stylish,
while the computer simply runs
through millions of possible scenarios
and picks the best. In either case,
when dealing with the outcome of
formalized combat within the rules of
the game, the computer will now win
most of the time.
Wait a minute—“formalized
combat within the rules”—isn’t that
also the definition of litigation?
So now, computers are not just
tools we have to learn how to use.
Now computers are becoming our
adversaries and competitors, even our
would-be replacements. I, for one, do
not welcome our new computer over-
lords.
Spring 2011 - 33TBN

99
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