Raising the Bar

In April 2020, the Court made history when it announced that oral arguments would be heard by telephone in May, with a live audio feed of the arguments being provided to the news media. The Court provided a live feed to FOX News (the network pool chair), the Associated Press, and C-Span, which in turn provided a simultaneous feed for the oral arguments to various media platforms. The new oral argument format drew mixed reviews. The Court used a teleconferencing system to call counsel on the morning of their argument. All counsel would be called simultaneously at 9:15 a.m. and placed on a call with the Clerk of Court for a quick briefing. They would then be placed on mute until 9:50 a.m., at which time they would be moved to the main conference call line in preparation for oral argument. At 10 a.m., the Justices would enter the main conference line and the Marshal of the Court would cry the Court. The Chief Justice would call the first case and, as per usual practice, counsel would have two minutes uninterrupted before questioning by the Justices began. The Chief Justice would begin questioning, followed by the Associate Justices in order of seniority. This format continued for the remainder of the Spring term. The Spring term held a number of newsworthy moments, as the arguments were now available for the public to hear live. There was, of course, widespread fascination with Justice Thomas’ increased participation in questioning, and the “toilet flush” that was heard around the world.

On September 16, 2020, the Court issued another press release informing the public that the Court would continue to hear oral arguments by telephone conference in the October 2020 session, following the format set out in May. The Court, again, provided live audio feed to the news media; this time providing it to ABC News (the network pool chair), the Associated Press, and C-SPAN. The Court continued with this practice through the remainder of 2020 and has announced that the January session will also be conducted by telephone conference. There is no formal indication as to when oral arguments will be held in-person again at the United States Supreme Court. Hopefully, when vaccinations become wide-spread, the Court will be able to open and operate safely again. Court watchers across the county are eager to see if the Court will continue to adopt more transparent policies once in-person oral arguments resume, by allowing live audio (or video) feeds to be provided to the public.

The Court is allowing small groups to request swearing-in ceremony dates again. The United States Supreme Court Swearing-In Subcommittee will request a date in the hopes that we can move forward with admitting another group of DRI Young Lawyers to the highest Court in the land. If you are interested in being admitted before the United States Supreme Court, please contact chairs Jeanmarie Tankersley of Clawson and Staubes LLC in Greenville, South Carolina at JTankersley@cslaw.com or Megan Peterson of Simon Peragine Smith & Redfearn LLP in New Orleans, Louisiana at MeganP@spsr-law.com, or vice chair Samuel Park of Kane Pugh Knoell Troy & Kramer LLP in Philadelphia, Pennsylvania at spark@kanepugh.com. Under normal circumstances, approximately 4,000 attorneys are admitted each year to the United States Supreme Court. Admission greatly increases one’s chances of hearing oral arguments for high-profile cases because admitted attorneys are permitted to wait in the attorney line for oral arguments instead of the line for the general public. Also, admitted attorneys are given seating closer to the Justices inside the courtroom.

Jeanmarie Tankersley is a partner with Clawson and Staubes LLC in Greenville, South Carolina. Clawson and Staubes LLC serves clients throughout South Carolina and North Carolina and focuses on civil litigation, appellate admiralty and maritime, alternative dispute resolution, construction defect, criminal defense, creditor’s rights, family, governmental, immigration, insurance defense, and workers’ compensation law. Jeanmarie can be reached at jtankersley@cslaw.com.

Service Project with Cookie Cart

On Wednesday morning, we participate in a service project with Cookie Cart. This organization provides paid work experience to the city’s youth in commercial bakeries, and they learn career readiness and leadership. We will meet with the youth to discuss our own career paths and maybe even taste some cookies. This is a great opportunity to give back and spend time with service-oriented young lawyers. This outing will be an early morning trip so be sure to make the necessary travel arrangements to join us!

Enneagram Networking Workshop

This year, we will see a new Wednesday afternoon workshop to learn about the Enneagram personality types. We will determine our own Enneagram type and become familiar with our strengths and weaknesses to assist us in our practices. This will be a great opportunity to learn about yourself and make new friends!

Riverside Yoga

After an unprecedented year of stress, we will take some time out to focus on wellness. On Thursday morning, we will head to the river for a light yoga and meditation session led by our own certified yoga instructor and YL Kelly Calder Mowen. Join us to relax and set the intention for a great day!

First-Time Attendee Breakfast

If you are a newbie, do not worry! Our Committee Chair, Stephanie Wurdock, will give you the scoop on what it means to join the Young Lawyers and take advantage of all the seminar has to offer. This early morning breakfast will take place on Thursday before the start of seminar programming.

Dine Arounds

How else will you get to know your fellow Young Lawyers than over dinner at some of the best restaurants Minneapolis has to offer? The food is great, but the company is better! There may even be some tater tot hotdish! Be sure to keep an eye out for the Dine Around sign-ups as the Seminar gets closer.

Women in the Law and Diversity & Inclusion Luncheon

On Thursday, the YLC Women in the Law and Diversity & Inclusion Subcommittees will present Justice Anne McKeig of the Minnesota Supreme Court. She will discuss her life experiences as the nation’s first Indian American woman state supreme court justice. This event will feed your belly and your mind. Sign up for this luncheon when you submit your registration form for the seminar.

Fast Pitch

Fast Pitch returns to Minneapolis this year bringing you the opportunity to get up close and personal with in-house counsel to talk about your business. Prepare your best pitch and get tailored advice on how to improve. There is no reason to miss out!

As we get closer to the Seminar, be on the lookout for Virtual Happy Hours to get the party started! Evite some friends. It will be a great time!

Shelley Napolitano is a Director with Maron Marvel Bradley Anderson & Tardy in the New Orleans office. She is a member of the firm's Product Liability and Mass Toxic Tort litigation team, focusing in the areas of asbestos and talc. Shelley is also part of the firm's General Liability Litigation team for which she manages a varied personal injury docket, defending insurers and a range of Louisiana companies in products, premise liability, and other injury cases. She is the first young lawyer appointed to serve as the chair of the DRI Publications Board and she also serves as the DRI Young Lawyers Committee's Marketing Chair.

Employers have a number of options when assessing whether to require employees to be vaccinated for COVID-19:

1. Treat the COVID-19 vaccine just like the annual influenza vaccine. In this option, employers offer the vaccine to employees free of charge on a strictly voluntary basis or otherwise encourage their employees to be vaccinated. Notably, this is the approach the U.S. Equal Employment Opportunity Commission (EEOC) recommends.
2. Require all employees receive the vaccine unless they qualify for a religious or disability exemption.
3. Take a hybrid approach by requiring certain employees (e.g., those who cannot work remotely or cannot practice physical distancing) receive the vaccine but make the vaccine voluntary for everyone else.
4. Remain silent.

Fortunately, the EEOC has provided guidance (Section K) in the form of FAQs that employers can follow in making these decisions. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Section K). The EEOC focuses most of its guidance on familiar ADA and Title VII considerations broadly applicable to the employer-employee relationship and while the EEOC did not come right out and say that employers can mandate the COVID-19 vaccine (with exemptions for disabilities and religion), reading between the lines, it does appear that the EEOC has “blessed” this approach.

For instance, when it comes to the ADA, the EEOC says that if an employee cannot be vaccinated because of a disability, employers need to assess whether the unvaccinated employee would pose a “direct threat” because of the “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” See 29 C.F.R. §1630.2(r). The EEOC explains that, “employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: [1] the duration of the risk; [2] the nature and severity of the potential harm; [3] the likelihood that the potential harm will occur; and [4] the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Section K.5). If a direct threat is found to exist, employers then have to assess what, if any, reasonable accommodations “would eliminate or reduce” the risks posed by the unvaccinated employee. Of course, this will vary based on the individual, the employer, and the specific job the individual is performing. For instance, hospitals have vastly different factors to consider than law firms and there may be a completely different playbook for nurses working in those hospitals than for hospital administration. Some things employers should consider are:

• Can the risk be eliminated through a combination of mask wearing, physical distancing, and frequent handwashing?
• Can the employee work remotely?
• Can the employee be transferred to another open and available position (assuming they are qualified)?
• Can the employee be placed on a leave of absence?

When it comes to religious exemption requests, the EEOC provides that once employers are on notice of an employee’s sincerely held religious belief preventing him or her from receiving the vaccine, employers must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. The EEOC also explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer is justified in requesting additional supporting information.

However, while it is much easier to show undue hardship under Title VII than under the ADA, employers still need to assess whether the employee’s request is, in fact, based on a sincerely held religious belief rather other objections to the COVID-19 vaccine (such as objections based on efficacy, potential side effects of the vaccine, vaccines generally, or concerns that the vaccine is otherwise unsafe) . When evaluating religious exemption requests, employers should remember that the EEOC has stated that an employee can have a valid religious exemption even though no religious group espouses the beliefs of the employee and even if the religious group to which the employee belongs does not accept that belief.

Obviously, these are not the only issues facing employers when it comes to the COVID-19 vaccine. And even though the EEOC appears to be okay with employers mandating the vaccine, employers will have to ask, “do we want to?” Adopting such a policy could create additional costs for employers because some employees may reject a mandate and refuse to be vaccinated. In those instances, employers have to decide what to do. Will the employee be fired? Will the employer “let it slide?” What if this employee just happens to be the company’s top performing salesperson?

Does that change the considerations? All of these decisions have wide-ranging implications and employers may find themselves walking into a discrimination lawsuit if they let a male (or white, Christian, young, or other legally protected characteristic) employee continue working without being vaccinated, but fire the female (or black, Muslim, older, etc.) employee for the same reason. If employers are going to mandate the vaccine, it is imperative that they enforce the policy uniformly to avoid added legal risk.

In unionized workforces, employers need to evaluate whether they need to bargain with the union over a vaccination policy under the terms of a collective bargaining agreement.

Employers administering a COVID-19 vaccination program may also be liable for payment of workers’ compensation wage loss and medical benefits if an employee experiences an adverse reaction to the vaccine.

Another open question is will employees be paid for the time spent being vaccinated under their employer’s vaccination program? Under federal wage and hour laws, if receiving a vaccination is a job requirement, generally, employers need to compensate employees for that time.

There is also an open question if administering a voluntary vaccination program where employees are offered gift cards, extra vacation days, or other benefits for receiving the vaccination, turns a voluntary vaccination program into a “wellness program” under the ADA. Under current EEOC guidance, it appears the answer is “yes.” Therefore, employers need to make sure any benefits offered to employees do not transform an otherwise voluntary program into a coercive one.

According to the EEOC, anything more than a “de minimis” benefit (such as a water bottle or a gift card of “modest value”) is prohibited.

As can be seen above, creating a COVID-19 vaccination program (mandatory or not) certainly is not without legal risk. Even though we are months away from widespread general availability of the vaccine, now is the time for employers to decide whether to implement a vaccination program. If the decision is to move forward with a program, employers need to start planning immediately.

David E. Renner is a Partner in FisherBroyles LLP’s Employment Practice Group. He is a trusted advisor and litigator for employers across all industries, including in the retail, energy, hospitality, construction, manufacturing, oil & gas, financial services, and healthcare sectors. He has successfully handled hundreds of cases and claims, litigating, and advising on nearly every facet of labor and employment law. He is also known for his extensive experience defending EEOC and state enforcement actions, employment class actions, and FLSA collective actions. Clients also rely on Dave for daily advice and counsel on a wide range of issues, including preventive advice, proactive plans and policies, and solutions to dangerous problems in a cost-effective manner.  Dave can be reached at david.renner@fisherbroyles.

However, the economic conditions brought on by the pandemic invigorated supply chain operations, due in part to an increase in supply and demand for cleaning supplies or other household essentials during the pandemic. Further, e-commerce sales rose more than 100 percent at several large retailers amid the COVID-19 pandemic. This confluence of events put truck drivers on the frontline of ensuring American consumers were provided with essential products. As retailers expect sales to continue to rise in 2021, the economy and truck driver demand are expected to continue rebounding throughout 2021.

The need for truckers hauling freight is in high demand as e-commerce and online shopping have never been higher and are only expected to increase in the future. We can expect to see an extended peak in freight demand from the impacts of the pandemic, creating a positive trend in the years ahead. This upward trend in shopping means America will need more drivers to balance out the growing demand for freight. According to FTR Transportation Intelligence predictions, truck freight will grow six percent in 2021, which is a strong growth rate when looking at year-over-year comparisons. See “Trucking Industry Outlook for 2021” available at https://jtlcdltraining.com/trucking-industry-outlook-for-2021/. Wadewitz expects “a strong peak season, which should support a boost to trucker revenue from project freight, mini-bids and strong spot rates.” See “Trucking Industry outlook improves second half of 2020” available at https://talkbusiness.net/2020/09/trucking-industry-outlook-improves-in-second-half-of-2020/. This growth may become a new normal, as carriers adjust to higher levels of e-commerce as a percentage of total retail spending; a trend that has been highlighted throughout the pandemic.

This is a promising sign for carriers, especially for those entrenched in the manufacturing, energy, and automotive sectors, as truckload and LTL volumes were severely impacted in the second quarter of 2020. This period brought about economic woes as the economy entered its first recession since 2011. The white paper reports that the nation’s GDP likely fell 30 percent to 50 percent in the second quarter. See “White Paper: 2020 Q3 Shipper Rate Report” available at https://www.freightwaves.com/wp-content/uploads/2020/08/Q3-Shipper-Rate-Report.pdf. However, both shipments and freight spending reportedly fell less than U.S. GDP overall as the economic decline had the greatest impact on the service industry. In fact, tender rejections averaged 7.47 percent in Q2, 258 basis points (bps) higher than the previous year. The white paper also reports that contract volumes and spot rates averaged 6.8 percent and 2.8 percent higher year-over-year in the second quarter, respectively. Carriers are also projected to fare extremely well as the capacity (supply) side is expected to present a lower vulnerability to downside risk than typically experienced in a freight recession. This is due to the industry’s eighteen-month cleansing of supply. See “Trucking industry expected to remain on upswing through 2021” available at https://www.freightwaves.com/news/trucking-industry-expected-to-remain-on-upswing-through-2021.

Despite macro-economic conditions taking a plunging due to COVID-19, the trucking industry has persisted and looks to remain on an upward trajectory. With more drivers on the roadway, there will likely be an increase in trucking litigation as the global supply chains resume and attempts to catch up due to related shutdowns. As witnessed during the pandemic, truck driving is one of the most important industries providing millions of jobs and delivering commodities to communities throughout the United States. However, truck driving is also one of the most dangerous jobs, causing thousands of fatalities each year. As young lawyers, we know that a typical motor vehicle accident is not as dangerous as a commercial trucking accident. Merely due to the size and weight of these massive vehicles. These accidents will often cause extensive property damage and more extensive injuries than a normal motor vehicle accident. With companies hiring more inexperienced drivers, here are five simple tips to consider to prevent or reduce your client’s exposure in trucking-related litigation:

1) Conduct a regular review: Ensure that your client is reviewing the motor vehicle record of each employee operating and ensure ongoing driver monitoring. It is important to capture real-time data on how the driver is operating the vehicle as this will help in assessing and evaluating your cases and determining what defenses you may have available. 
2) Conduct proper investigations: Ensure that your client investigates all accidents and retains copies of the bill of lading and written and recorded statements for at least three to five years. This will ensure that you have a more accurate depiction of how the accident may have occurred.
3) Enforce proper driver habits: Ensure that drivers are aware of their surroundings, merge carefully, avoid blind spots, use caution when passing, use proper signal before changing lanes, drive the speed limit and be a well-rested driver. Consistently enforcing safe driving habits may prevent an accident from occurring.
4) Properly inspect vehicles before operating: Ensure that the driver properly inspects his or her vehicle before beginning their route. Inspecting the vehicle may alert the driver of faulty breaks or worn tires which can also cause accidents.
5) Lastly, ensure that your client is reviewing any violations that their drivers may receive and ensure it complies with the company’s policies and procedures.

Even with all the preventable measures we must not forget that human error is the cause of the majority of vehicular accidents. The most important thing is that your client has documented policies and procedures in place to mitigate the losses.

Lacresha D. Wilkerson is an associate at Simon Peragine Smith & Redfearn LLP with the firm’s commercial litigation section. Her primary practice concentrates on defending transportation, premise liability, maritime and construction claims. Lacresha can be read at LacreshaW@spsr-law.com.

Background

Enacted in 1990, the Civil Justice Reform Act (CJRA) is part of Congress’s answer to perceived federal court backlogs. The Act includes several provisions including the process that has come to be known as the “Six Month List.” The Six Month List functions by publicly publishing lists of certain long-pending motions, along with the identity of the judge before whom the motions are pending. District courts typically work hard to resolve all pending motions before the end of each “Six Month List” period.

However, the term “Six Month List” can be misleading. In some cases a motion might sit for almost a year before it would make it onto a “Six month List.” Read on for the details.

The Three “Phases” of the Six Month List

In understanding the Six Month List process, it is often helpful to break the process down into three “phases”: (1) the “Filing Phase”; (2) the “Judge’s List Phase”; and (3) the “Publication Phase” (the phase in which a list of all unresolved motions that were pending on a Judge’s internal list are made publicly available). Below is a description of these phases in detail.

(1) The Filing Phase

The Filing Phase is the six month period in which a motion is filed. There are two filing phases annually: the first runs from April 1 to September 30 (the “April Filing Phase”); and the second runs from October 1 through March 31 (the “October Filing Phase”). Motions filed during the April Filing Phase proceed to the Judge’s List Phase if they are still pending on October 1. Similarly, motions filed in the October Filing Phase proceed to the Judge’s List Phase if still pending on April 1.
Once your motion is filed, the judge may hear and/or decide you motion at any time. However, motions in the filing phase are almost certainly fighting for priority with older motions already on the “Judge’s List”, a battle overwhelmingly won by the older motions. In my experience, however, there are exceptions. For example, emergency motions (i.e. motions for temporary injunctions) and uncomplicated motions (i.e., motions to amend a scheduling order or motions for a stay, especially if filed by consent) are likely to be decided much more quickly than a more complicated motion (such as a motion for summary judgment or a motion to dismiss.

(2) The Judge’s List Phase

During the Judge’s List Phase, all pending motions filed during the previous Filing Phase appear on the district judge’s internal six month list. Like the filing phase, there are two “Judge’s List” phases annually, the first running April 1 through September 30 (the “April Judge’s List Phase”), and the second from October 1 through March 31 (the “October Judge’s List Phase”). Motions filed during the April Filing Phase, if unresolved, will appear on the upcoming October Judge’s List Phase, and unresolved motions filed during the October Filing Phase will appear on the next year’s April Judge’s List Phase.

(3) The Publication Phase

There are also two Publication Phases annually. These are the phases in which semi-annual reports of unresolved motions are made publicly available. The first annual Publication Phases follows the April Judge’s List Phase and the second follows the October Judge’s List Phase. Motions unresolved at the end the Judge’s List Phase must be reported to the Director of the Administrative Office of the United States Courts.

However, the Director rarely has much to report. The Judges and their staff work hard to resolve their pending motions, and in my experience it is highly unusual to see more than a handful of motions across an entire district survive to reach to the report. Moreover, the motions that survive likely had good reason for remaining on the list.

Illustration 1: A Visual Timeline of the Six Month List Phases

Conclusion

Understanding the Six Month List process can benefit your motions practice. Use the Six Month List strategically as you determine when to file your motion. For example, motions filed April 1st could sit in Filing Phase limbo for nearly six months before reaching the Judge’s List Phase, where they could sit for nearly six months more. On the other hand, a motion filed on March 31st will hit the Judge’s List the next day. When possible, use this information to your benefit. If you want your motion to receive attention more quickly, file it just before the next Judge’s List Phase. If the motion does not need a rapid decision, or if a delay in the ruling might potentially benefit your case, consider filing early in the Filing Phase where it may not be top priority on the judge’s list, at least as far as the Six Month List timeline is concerned.

You can also use the Six Month List to help predict when a motion is likely to be decided. If a motion was filed April 1, the Six Month List process will not really begin to build until approximately six months later when the motion moves to the Judge’s List. On the other hand, if the motion has already been pending for a number of months in the Judge’s List phase, the motion may be coming due for a ruling in the very near future. Use this not only for your own benefit, but also to help your client understand where a motion might be in the decision-making process. Of course, the Six Month List does not guarantee a ruling within a certain time period, so like your favorite fortune teller, it is best not to lock yourself into a precise date.

Brandon Gottschall is a member at Sweeny Wingate & Barrow PA in Columbia, South Carolina. He joined the firm following a three-year clerkship with the Chief United States District Judge for the District of South Carolina. Brandon’s practice focuses on insurance coverage & bad faith, appeals, personal injury defense, and transportation defense, in both state and federal courts. Brandon can be reached at brg@swblaw.com.

Exfiltration by Employees Has Become Easier

As with data breaches, the same can be said for employee wrongdoing—if data can get in, then data can also get out. Our experts have worked on thousands of cases in which organizations have allowed employees to use their own external hard drives, thumb drives, and cell phones, and breaches are still relatively common. However, we are well-past the days of BYOD (Bring Your Own Device) being the only feasible method of malicious data extraction out of an organization. Even if personal devices are not allowed by an organization, and the IT department has safeguards against any foreign device being plugged into a computer or server at the company, there are still a plethora of ways data can be exfiltrated from inside an organization.

Confidential customer lists, proprietary information, and executive strategy documents are now being transferred out of an organization maliciously by employees, or former employees, using filesharing applications, cloud-based services, messaging applications, videos taken of the computer screen right on a cell phone, and personal email accounts.
Every time an application introduces methods to transfer files using a computer, cell phone, or tablet, they increase their potential customer base. Subsequently, the danger of data theft by an employee is greater than ever, if only because the means to do so is so easily accessible and requires such a low level of technical sophistication.

Non-Sophisticated Technology Users on the Attack

Examples abound from the cases we have worked that play out this scenario. As a digital forensics firm, we’ve seen employees steal data by transferring files from a work-related Skype account to their personal Skype account. We have also seen thousands of emails sent from work email accounts to secret, personal email accounts, and even sensitive company data transferred via messaging applications by a disgruntled employee to the cell phones of their children to obfuscate the activity.

Employees can even deploy remote access capabilities to computers after their termination date. They can go in and harvest the data they want well after walking out of the building, which, believe it or not, is relatively simple even for a technology novice with modern software applications.

All of the aforementioned methods are at the fingertips of a non-sophisticated technology user. The ways a “technocrat” can nefariously extract data are so convoluted and multiplicious that they are truly limited only by ability and imagination. We have seen employees create backups of their entire computer in proprietary software formats so they are essentially hidden from non-forensic review employees, who can then subsequently delete all of the sensitive information from their machine so it appears “clean.” On the surface, the employee’s computer would not flag any concerns, and the employee could walk right out the door. But, that story can quickly change once the company starts seeing their customers being solicited and poached.

The ability to create a backup like this is possible using any device, including a cell phone. What is preventing an employee from simply creating a backup of all their data, including emails, contacts, and confidential files before turning the phone over to be wiped by the IT department? In almost every instance, the answer is “nothing.”

Why Time Is So Important

In many cyber breaches, an organization that is having sensitive data stolen by hackers usually is not aware that it is occurring until weeks or months after the initial breach occurred. The same is true in employee wrongdoing matters. An employee has stolen data and the organization may not know until weeks or months have passed. The damage is already done, and that employee is at their new job, opportunistically wielding their previous employer's data.

The passage of time harms data. For example, let’s play out a common scenario. The computer used to steal data by a previous employee has been given to a new hire. Every moment that computer is in operation it is overwriting unallocated space, often called “deleted space,” with new data. The new data is truly deleting the forensic artifacts and evidence of wrongdoing that lived there. Without this evidence, the chances of successful litigation are compromised.

This type of scenario is a common occurrence that we see. For an organization, it is in their best interest to preserve the computers, cell phones, and other digital devices. This could mean simply placing those items into secure storage and leaving them untouched for a period of time. Or, preferably, the devices will be forensically imaged (copied) so that these devices can be verified in accordance with forensic best practices. This is especially helpful if litigation ensues and expert testimony may be required. Another benefit is that the devices can then be wiped and put back into circulation.

After a Breach or Employee Wrongdoing Incident Occurs

Obtaining the devices and computer is just the first step. If you choose to work with a digital forensics examiner, you should make sure that you understand how they store those devices, because those items are the only “true evidence” that you may have. If they are tampered with, hacked or destroyed, your case may be gone. You should make sure that you understand the software and storage options, the costs, and have an overall good feeling about the examiner. They need to be able to present, in a clear and organized fashion, the technical data found to not only you as the client, but also to a potential judge or jury.

Never underestimate the human imagination. Even with the most elite team of internal information technology experts on staff, employees will, and do, take advantage of company data.

Lars Daniel, EnCE, ACE, AME, CTNS, CIPTS, CTA, CWA, is a practice leader at Envista Forensics.  Lars has qualified as an expert witness and testified in both state and federal courts, for both the defense and prosecution, qualifying as a digital forensics expert, computer forensics expert, cell phone forensics expert, video forensics expert, and photo forensics expert.  Additionally, he has worked on hundreds of cases involving murder, sexual exploitation, terrorism, rape, kidnapping, intellectual property, fraud, wrongful death, employee wrongdoing, and insurance losses. Lars can be reached at lars.daniel@envistaforensics.com.

Even before the pandemic, most working parents of young and school-age children were in a constant battle for a semblance of “work-life balance.” Balancing the demands of work and raising children was hard enough when schools and daycares were open, when it was safe to let kids go on playdates for a few hours and you could rely on extra help from friends, family, and neighbors.

But now, with many schools and daycares closed, and with social distancing guidelines, many parents are seeing these support systems evaporate, not to mention they are being forced to step into the role of teacher in addition to their roles as parents and attorneys. The task of “doing it all” is more impossible now than ever. And this disproportionately impacts working mothers.

In October, TIME Magazine reported that between August and September alone, 865,000 women and 216,000 men dropped out of the labor force. One in four women are considering reducing work hours, moving to part-time roles, switching to less demanding jobs, taking leaves of absence from work, or stepping away from the workforce altogether. (SOURCE: https://time.com/5900583/women-workforce-economy-covid/) Of course there is a myriad of reasons why people—including women—are leaving the workforce in droves. However, a large reason is lack of support.

Even before COVID-19 hit, it was a goal of mine to start a YLC Working Parents Task Force to address the unique challenges many of our members face in trying to juggle job responsibilities with child-rearing and “extracurricular activities” such as involvement in DRI. Parents are some of the hardest-working, resourceful, and most effective problem-solving people you will meet. We NEED working parents in the practice of law and involved in this organization. Their skillsets and perspective are invaluable.

Now, with COVID-19 threatening to turn the tables even more against working parents, it is absolutely imperative that we embark upon this effort. While the specific goals of the Working Parents Task Force are yet to be finalized, the overall mission will be to build a support network for working parents and to provide virtual networking, encouragement, and resources for continued career advancement and personal fulfillment.

If you are a member of the DRI Young Lawyers Committee and you are interested in joining the Working Parents Task Force, please email me at swurdock@sturgillturner.com. All are welcome to join regardless of whether you have children already, are expecting, plan to have children, or do not plan to have children. All perspectives are valuable, and your input would be very greatly appreciated. I look forward to hearing from you and working with you on this important project.

Stephanie M. Wurdock is a member with Sturgill Turner Barker & Moloney PLLC, in Lexington, Kentucky. Stephanie is a healthcare litigator, working with healthcare providers, insurers, and risk managers to defend claims of medical malpractice, wrongful death, and nursing home negligence. She is the chair of the Young Lawyers Committee.

We wait with bated breath for the DRI Young Lawyers Seminar, scheduled for June 23–25, 2021. I, for one, am keeping my fingers crossed that it will be held in-person in Minneapolis, but, even if it is not, our virtual seminar will be just as exciting and worthwhile. The DRI Young Lawyers Seminar Planning subcommittee works overtime to provide a compelling program of speakers, activities, and events. I have never been disappointed by any of our Seminars, including the virtual ones. You will not want to miss this, so mark your calendars now. If you cannot attend the Young Lawyer Seminar this year, do not worry, because DRI is still hosting a great collection of virtual CLE events to connect with friends and colleagues and grow in your career. Nearly all these programs offer cutting-edge information on the emerging and complicated issues that COVID-19, virtual offices and classrooms, and computerized courtrooms have made our “new normal.” I know that I would not have been able to advise my clients and prepare for matters on these issues without the great curriculum that DRI has worked tirelessly to put on despite any challenge. We would encourage you to take advantage of these events so you can get the most out of your membership. Even better—send an invitation to someone you know so you can attend together. You can qualify for great benefits and rewards for your recruitment efforts, including free attendance at DRI events. Many of CLEs come free with your membership, by the way, and they would be free for a friend, too.

As always, let any one of us on Membership know if you need help getting more connected to Young Lawyers or a DRI Committee in your practice area, or if you have someone in mind that you want to recruit to DRI and Young Lawyers. I wish you all good health in the months ahead. Stay safe and be well.

Thomas H. Wyatt is a member of Quattlebaum, Grooms & Tull PLLC in Little Rock, Arkansas. Tom’s practice specializes in commercial litigation, property litigation, and products liability. Tom provides a cost-effective, trial-focused approach to cases involving breach of contract, class actions, condemnation, landlord-tenant disputes, and more. Tom has practiced before the United States Court of Appeals for the Eighth Circuit, the United States District Courts for the Eastern and Western Districts of Arkansas, the Arkansas Court of Appeals, and as local counsel on behalf of national companies in numerous circuit courts in the State of Arkansas. Tom can be reached by telephone at (501) 379-1730 or by email at twyatt@qgtlaw.com.

Deck of Cards

Playing card games is always fun and encouraged. In fact, depending on the setting and what is at stake, you might feel like you can get a serious mental workout from playing cards. However, using a deck of cards for a physical workout is a bit different.

In using a deck of cards for a workout, each card you flip is its own exercise. For example, one card can be a set of push-ups, the next card a set of sit-ups, and the next card a set of dips. For the dips, use whatever you can find—a table, a chair, various pieces of furniture, etc. To determine how many repetitions to do for each exercise, use the value of the card you flipped. Cards 2-10 are worth the value of each card, jacks are 11, queens are 12, kings are 13, and aces are 14.

By way of example, you flip a jack for the first card. You proceed to then do eleven push-ups. The next card you flip is a five, and you complete five sit-ups. Next card is an ace, and you complete fourteen dips.

There are no set rules on what exercises to do. Feel free to mix it up! Perhaps you add a set of squats, maybe a set of burpees. You can also incorporate the suits of the cards in your workout. Something to consider is mixing up specific exercises based on the suits of the cards, such as wide push-ups for red suits (hearts and diamonds) and regular push-ups for black suits (clubs and spades). The possibilities are endless! If you want to challenge yourself further, consider going through the deck of cards a second or third time after you finish the first time through. If anything, using the deck of cards for a workout is something different, fun, and easy to do.

Yoga

Yoga is a great way to exercise physically while also clearing your mind. Yoga has many benefits, such as improving strength, balance, and flexibility. It relaxes you and is a great way to manage stress.

So, how does one get started? All you need to do is get yourself a yoga mat (and even then, you do not technically need one). After you have purchased your yoga mat, head to the internet! There are tons of different yoga workouts available online for free. Get a feel for the different exercises, and you will likely enjoy some more than others. Before you know it, you may be a regular yogi!

Walk

Walking is a very underrated exercise that has multiple benefits. It increases one’s cardiovascular fitness, while also reducing the risk of heart disease. And it is a great way to get out of the house!

No instructions are needed for how to walk. Though, it is often beneficial to enjoy the walk and clear your mind, as opposed to thinking of everything on your plate—both at work and outside of work. Try listening to music or a podcast you enjoy; or, perhaps listening to nothing is the best way to go. If you have the option to walk with others, such as your family or dog(s), do it! You will not regret it.

Wall Sits

Wall sits are an exercise you can do anywhere in a room with a flat wall. They are a great way to work your lower body, especially your quads. If you are looking for an alternative to squats, wall sits are a nice alternative.

In order to perform a wall sit, position your back against the wall and hold yourself in a seated position. You will want to hold your thighs at a 90-degree angle to your lower legs and back. While doing this, do not extend your knees past your ankles. In addition, your heels should remain on the ground, with your weight on your heels and not your toes. This can be done for any amount of time—30 seconds, 45 seconds, 1 minute, etc.

These can be challenging, so try your hardest! And, once you have mastered them, you will be able to dunk a basketball in no time.*

*Height of hoop will vary.

Meditation

Meditation is a mental exercise that allows one to relax, control anxiety, and promote mental health, among other things. It can be done anywhere, and it is not difficult to do.

Meditation can be performed in a variety of different ways. A common way to meditate is to close your eyes in a relaxed position. While doing this, breathe naturally and focus on your breathing. Focusing on your breathing can avert your attention from other distractions, allowing you to clear your mind.

We will make it through this pandemic, but in the interim, know that there are multiple wellness exercises and activities you can do at home!

Sam Heaney is an attorney at Martin Pringle Oliver Wallace and Bauer LLP in Overland Park, Kansas, and he practices in both Kansas and Missouri. Sam has been a DRI member since 2014. Sam’s practice focuses on general insurance defense litigation, which includes health care and nursing home defense, personal injury defense, and premises liability defense. Sam can be reached at spheaney@martinpringle.com. 

No, your eyes will not stay “like that” if you cross them. And no, your eyes won’t rot if you sit too close to the television. But all this constant, yet unavoidable, screen time leads to eye fatigue, dryness, and irritability, and can even cause permanent retinal damage. See Kierstan Boyd, Computers, Digital Devices and Eye Strain, American Academy of Ophthalmology (March 3, 2020), https://www.aao.org/eye-health/tips-prevention/computer-usage. Humans naturally blink around 15 times a minute; but, when put in front of a screen, humans blink much less frequently, leading the eyes to dry and sometimes become irritated. Ashley Marcin, How Does the 20-20-20 Rule Prevent Eye Strain?, Healthline (updated Feb. 3, 2017), https://www.healthline.com/health/eye-health/20-20-20-rule. Thus, when our digital addiction becomes a work, school, and downtime necessity, it is important to stop and think about what impact that has on one of our most important organs—especially in a profession consisting mostly of reading and writing.

So, how do we prevent or alleviate tired eyes in a world where we oscillate from phone to laptop to Netflix around the clock? Here are a few tips for preserving one of our most important organs.

20/20/20 and Beyond

One of the most common tools for fighting eye strain is the 20/20/20 rule. For every 20 minutes you sit in front of a screen, stare at something about 20 feet away for 20 seconds. Boyd, supra. This trick allows your eyes to completely relax and prevent the onset of eye strain symptoms, such as fatigue and dryness. Marcin, supra. Try setting a timer to remind yourself to look away for a few seconds or go a step further and get up and stretch or walk.

Screen Health

Not every work-at-home setup is going to be ergonomically perfect, but we can try to be a little better when it comes to how our screens are positioned in relation to our eyes.  A screen should be at least 25" away from your eyes, and the screen should be positioned to encourage a downward glance. Marcin, supra.

A dirty screen can also strain your eyes. Id. Keep your laptop screen free from smudges and debris with a quick wipe at the end of the evening with a microfiber cloth and a screen-safe cleanser or alcohol, if appropriate for the type of monitor you have.

Is Blue Light a Thing?

Digital screens emit blue light, which causes eye strain and can even disturb a person’s circadian rhythm (this is why it is not good to sleep with a TV on!). Even before the world went on lockdown, blue light glasses became a trend in wellness. The jury is out on how blue light affects vision. Therefore, there is no concrete data on whether blue light filtering lenses are worth the cost.

At the same time, however, adjusting your screen’s brightness or switching to a darker theme may help reduce strain from hours before a bright, white screen. Boyd, supra. Generally, if a screen glows brighter than its surroundings, your eyes have to work harder to interpret what is before them. Id. Give your eyes a break and try playing with brightness and contrast settings.

Get Some Shut-Eye

Finally, simply blink more! As noted above, our eyes blink less when before a screen, meaning our eyes are less lubricated, dryer, and more prone to irritation. Marcin, supra. Sometimes closing your eyes for just a few seconds helps alleviate the strain and refocus after staring too long.

Also, when you’re done with work, you’re done with work. Rest your eyes at the end of the day by simply trying to sleep when you’re tired at the end of the day. If you’re in bed and tired, there is no reason to continue watching your latest streaming obsession or “doom scroll” through Twitter and Instagram. Shut it all down and get some shut-eye.

Everyone is different. At the end of the day, take a few moments to recognize when your eyes are getting tired and make adjustments to preserve your peepers. After all, screen time is not going away any time soon.

Marrielle Van Rossum is an attorney at Sulloway & Hollis, PLLC in Concord, New Hampshire. There, she represents hospitals and healthcare providers in medical negligence and professional negligence claims and advises employers across northern New England on employment matters. Marrielle can be reached at mvanrossum@sulloway.com.

What DRI committees (other than Young Lawyers) are you most interested in, and why?

I am interested in Litigation Skills and the Retail and Hospitality committees. I am always looking for ways to refine my skills as a trial lawyer. Additionally, I am interested in further developing my practice in the Retail and Hospitality realm.
What is your favorite part about being a lawyer?

It sounds cliché, but it really is helping people. I am often reminded by clients that being involved in a lawsuit is a daunting experience. As a lawyer, I can ease their fears, shoulder their burden, guide them through the litigation process, and (hopefully) resolve the case favorably. Nothing makes me happier than seeing a smile and hearing a sigh of relief from a client after their case concludes.

When you are not practicing law, what do you enjoy doing?

When I am not working, I am chasing around my one-year-old daughter, Libby. She is on the move and will soon be faster than I am, though that is not saying much. I also enjoy spending time with my family, walking our dog, cycling, and trying out new restaurants (pre-COVID).

What has been your biggest success in your legal career thus far?

I wish I had some Law and Order-esque trial triumph story, but I don’t (at least yet!). At the beginning of my career, I authored countless motions for summary judgment. Given my lack of experience, I did not argue many. For my first argument on a motion for summary judgment, I made my way into the courtroom. My nerves were off the charts. A harsh self-critic, I thought it went okay. A few weeks later, I received the Order. The Order granting my Motion. I basked in the glory for a moment, until receiving a Notice of Appeal from opposing counsel.

The appeal was transferred to appellate counsel. I assisted with the appellate work and the oral argument. A divided panel of the appellate court reversed. However, that was not the end. My client petitioned to transfer to the Indiana Supreme Court, which the court granted. The Indiana Supreme Court affirmed summary judgment for my client.

I consider this a major success in my career for a variety of reasons. First and foremost, I wrote the brief that ultimately led to our highest court’s affirmation and to the development of Indiana case law. Secondly, the experience opened my eyes to the appellate process. The first-hand experience was enlightening in a way that no textbook could have simulated. And, thirdly, it ignited a fire in me to continue to litigate at a time in my career where I could have ventured elsewhere.
What is most important piece of advice you have been given related to practicing law?

“Trust your instincts and don’t give in to doubt.” A professor bestowed that wisdom on me as I ventured into the world of private practice. He knew me well and knew my proclivity for self-doubt and criticism. Of course, he said, you should ask questions and seek help when needed. But he implored me to have faith in my intellect, training, and integrity.
What is the greatest sporting event you’ve ever been to?

In 2012, Indianapolis hosted the Super Bowl. While I did not attend the game, I attended the 10-day celebration throughout the city (law school attendance was at a low point during those few weeks). Super Bowl Village transformed downtown Indianapolis into a festival of football. The energy was palpable. For me, admittedly not a big football fan, the concerts, celebrations, and television broadcasts were more fun than the game itself.

What was your very first job?

A lifeguard and swim coach at my neighborhood pool--my dream job at age fifteen!

If someone is visiting your city, where is it essential that they go to eat?

Bluebeard. Hands down. My husband and I had our rehearsal dinner at Bluebeard. It opened in 2012, and I have been salivating over its food and drinks ever since. The menu is ever-changing and adventurous. The cocktails are inventive and delicious.

Molly E. Lee is an attorney at Lewis Wagner LLP in Indianapolis, Indiana. She concentrates her practice in premises liability defense, insurance defense and personal injury defense. Molly can be reached at mlee@lewiswagner.com.

 
Evan M. Norris

How and why did you first get involved with DRI?

I first got involved with DRI in 2020! I am an active member of Indiana’s defense bar “equivalent,” the Defense Trial Counsel of Indiana (“DTCI”). I currently serve as the Chair of the Construction Law Division. DTCI encourages its members to join DRI. Additionally, I wanted to become more involved in defense issues at the national level. After joining DRI, I applied to become a contributing member to the YL Committee. I was afforded the opportunity to serve as the Vice Chair of the “Raising the Bar” Subcommittee for 2020-21. I saw this as a great opportunity to meet other attorneys and hone my skills/increase my understanding of defense issues across the county.

What DRI committees (other than Young Lawyers) are you most interested in, and why?

I am most interested in DRI’s Construction Law Committee. As the Chair of DTCI’s Construction Law Division, I find it important to keep up on national trends occurring across the Midwest and other parts of the country. I think it’s vital to my clients’ interests to see issues “coming down the pipeline” to better anticipate trends.

What is your favorite part about being a lawyer?

I wanted to be an attorney to be in the courtroom. My week looks great, to me, when it is filled with hearings on dispositive motions and technical depositions, such as expert engineers or Trial Rule 30(B)(6) designees. Most of all, my favorite part of being an attorney is preparing and defending my clients in jury trials. There is no greater rush than being in a jury trial and putting all of your time/effort into one particular matter!

When you are not practicing law, what do you enjoy doing?

When I am not working, I am spending time with my wife and our three daughters (five and under!). On the weekends, we spend our time at soccer, swim lessons, dance classes, etc. When I am not being a “girl dad,” I enjoy riding my Peloton, watching the Colts, and going to local breweries and steakhouses in the Indianapolis area!

What has been your biggest success in your legal career thus far?

In September 2020 (during the pandemic), I was given the opportunity to try my first wrongful death case in Lake County, Indiana, a section of Indiana notorious for returning large jury verdicts. Liability was strongly disputed, and the issues were highly technical. The trial consisted of four days of live testimony and emotions were high by the time closing arguments came on the fifth day. In the end, the jury returned a defense verdict in favor of my client. There were few things more fulfilling than putting in the groundwork for months in advance to achieve an excellent result for my client, especially given the facts and circumstances of the case.

What is the most important piece of advice you have been given related to practicing law?

One of the most valuable pieces of advice I have been given is to always strive to be the most prepared and knowledgeable attorney on the facts and issues of a case before going into a deposition or appearing before the Court. All too often, attorneys will come to a deposition or hearing and have little-to-no knowledge of what the case is even about (and it often shows). Being the most prepared will open up a variety of opportunities for you and your client. Co-Defendants will begin to gravitate to you to bounce theories, judges will appreciate the preparedness, and the client will know that they can trust you with high-level matters. One of my favorite adages directly correlates to this advice that I try to incorporate into my practice: “Give me six hours to chop down a tree, and I will spend the first four sharpening the axe.”

What is the greatest sporting event you’ve ever been to?

In 2010, my family and I went to Miami to watch the Colts play the Saints in Super Bowl XLIV. While the Colts unfortunately could not pull out a win, it was still great to watch my team reach the pinnacle of the NFL season in-person. I was able to have an extremely brief encounter with Adam Sandler, David Spade, and Chris Rock, who were all plugging the movie Grown Ups. I even got to hold the Lombardi Trophy on the set of The NFL Today. It was an experience of a lifetime.

What was your very first job?

I was a “sandwich artist” at Jimmy Johns in high school. The free subs were a great perk!

If someone is visiting your city, where should they visit?

I would encourage anyone visiting Indianapolis to visit the Indianapolis Motor Speedway. IMS is a National Historic Landmark and home to the “greatest spectacle in racing,” The Indy 500. During the month of May, IMS and all of Central Indiana is buzzing with anticipation for the Memorial Day weekend race. The Indy 500 is the largest, single-day sporting event in the world, drawing crowds by the 100s of thousands. IMS also has an excellent museum and plethora of different activities ongoing throughout the year; even just driving by the 2.5 mile long oval is awe-inspiring for racing enthusiasts and casual fans alike!

Evan M. Norris is an attorney at Lewis and Wilkins LLP in Indianapolis, Indiana. He is the Vice Chair of the YLC's Raising the Bar Subcommittee and Chair of the Defense Trial Counsel of Indiana’s Construction Law Division. Evan’s practice primarily focuses on complex roadway design, construction, and maintenance defect matters involving serious bodily injury and death. He also represents clients involved in automobile negligence and defamation claims. Evan can be reached at norris@lewisandwilkins.com.