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Volume 23, Number 1

Spring 2017

PRESIDENT'S MESSAGE

 
Monte L. Neilan

Earlier this month, as I was walking through the office, my law partner, Mike Javoronok, extended his hand toward me and said, “Would you like to listen to these?” I looked down to see what he was offering.  It was a small, plastic and vinyl “book.”  It was once white but had yellowed in recent decades.  I recognized it as something that was used to store audio cassettes.

As a clarification for uninitiated (younger) readers, an audio cassette is a magnetic tape storage device commonly used in the 1980’s and early 1990’s.  The cassette consists of a plastic case enclosing two spools.  Between the two spools is wound a magnetic tape.  The magnetic tape is formatted for audio playback and recording.  Those occur as the tape is wound, from one spool to the other, across an electronic head that converts the magnetic signal into sound, or the sound into magnetic signal.  In that earlier era, the public used audio cassettes to listen to music.  Lawyers used audio cassettes of various sizes to dictate legal documents and to listen to professional development seminars (a precursor to Continuing Legal Education).

“What’s on them?” I asked as I accepted the book of cassettes from Mike.  “Harry Philo” he responded.  Harry M. Philo (1924-2012) was a giant of the trial bar.  From 1980 to 1981, he was the President of the Association of Trial Lawyers of America (ATLA) which is now known as the American Association for Justice (AAJ).  The audio cassettes were recorded as part of ATLA’s “Lawyers on the Side of People—1989 Past President’s Series.”  As a reality check, 1989 was before the birth of most of NATA’s law student members and many of our lawyer members.

Harry Philo served in a mortar brigade in Europe in World War II.  After the war, as a railroad worker in Albany, New York, Harry focused on labor organizing.  Later, he moved to Detroit where he continued labor organizing, then in the auto industry.  In 1959, he graduated from the Detroit College of Law.  Harry spent the summer of 1964 providing free legal services and helping with voter registration in Mississippi.  Perhaps more famously, he authored the Lawyers Desk Reference.  And he taught a generation of trial lawyers the key to every plaintiff’s personal injury case: determining how due care on the part of a collectible defendant would have prevented the client’s injuries.  Today, AAJ’s Harry M. Philo Award honors a person who has made an outstanding contribution to the civil justice system and whose work has advanced the safety and protection of the American consumers.

When I opened the book of Harry Philo recordings, I found cassettes 1, 2, 3, 4, and 6.  Cassette 5 has been lost to time.  At least in these recordings, Harry was meticulous and serious.  There is a saying among trial lawyers: those who can analyze, do; those who cannot, list.  I’m not sure whether that is correct.  But, Harry clearly liked lists.  On cassette 1, he lists and discusses the component elements of a trial lawyer’s ability to recover damages for a client.  I found his opinions on this topic to be interesting and sometimes surprising.  Perhaps you will, too.

Elements of Recovering Damages

Weight Assigned

  1. Personal traits

10%

  1. Philosophy

15%

  1. Ability to recognize liability and non-liability

25%

  1. Discovery capability

5%

  1. Management of experts

5%

  1. Understanding and proving medical

5%

  1. Understanding and proving damages

5%

  1. Understanding trial strategy and tactics

5%

  1. Trial preparation ability

5%

  1. Settlement skills

5%

  1. Trial skills

10%

  1. Appellate capability

3%

  1. Economic management skills

2%

Total

100%

After listening to Harry Philo’s lecture on the abilities required of a plaintiff’s trial lawyer, his ideas have continued running through my mind. I wonder, as trial lawyers do, about the evidentiary foundation for Harry’s opinions.  Were they accurate and reliable in 1989 when he recorded them?  More to the point, are Harry’s opinions useful to NATA members in 2017?  I got my answer via email!

Recently, NATA members completed a survey intended to aid your association’s ongoing strategic/long range planning initiative.  The survey results were provided to me . . . via email.  An uncanny number of the component elements of a trial lawyer’s ability to recover damages for a client, as enumerated by Harry Philo in 1989, are also topics identified by NATA survey respondents in 2017—topics our members would like help with.  Still, none of our members asked for help with either of the first two categories listed by Harry: Personal traits; and, Philosophy.

On the topic of “personal traits,” Harry Philo launched into a great list of adjectives and descriptive terms, though without much analysis or concern for parallel form.  The scant analysis provided does not fit neatly into the categories Harry provided.  For example, on the topic of “personal traits,” Harry begins by describing a lawyer who is “philosophically on the side of victims.”  Then, his next topic is “philosophy!”  Still, he was clear about concepts.

Here is what made Harry Philo’s list of important personal traits for a plaintiff’s trial lawyer: philosophically on the side of  victims, empathetic, ethical, responsible, exercises initiative, self-discipline,  ambitious, independent, courageous, confident, personable, self-respecting, positive attitude, ability to be self-critical, discretion, organizing ability, patient, maturity, stamina, observant, inquiring, sense of humor, education, experience, opportunity, wherewithal, business getting ability, reputation, personality. 

On the topic of a plaintiff trial lawyer’s personal philosophy, Harry Philo offered these thoughts.  According to him, most important is the ability to understand and grasp the concepts involved in common law liability.  Harry preached that, contrary to law school teachings, the law is what the court rules next time not what the court ruled last time.  He is known for saying that “the law is never fair until it is just; and, it is never just until it serves society to the fullest.”  Therefore, according to Harry Philo, the plaintiff’s lawyer must be willing to face defeat by summary judgment, directed verdict, verdict, judgment notwithstanding the verdict, and reversal on appeal.  Following such a defeat, the plaintiff’s lawyer must be willing and able to begin the fight anew on behalf of the next victim.

Harry Philo believed that tort law gives license to kill and maim via immunity, privity, and jurisdictional, procedural, and evidentiary limitations. But, that “the courtroom is the crucible of justice” and “liability is the hammer shaping a safer society.”  On the topic of safety, Harry Philo had much to say.  Harry was of the opinion that common sense does not allow a worker or consumer to recognize hazard, risk, gravity of the risk, the unreasonableness of risk, or safer engineering alternatives.  In fact, according to him, common sense is the reason most plaintiffs are injured. Safety engineering is sophisticated knowledge, not common knowledge, and not common sense. 

On those bases, according to Harry Philo, the plaintiff’s trial lawyer must understand and believe that “any risk of serious injury or death is always unreasonable and always unacceptable if reasonable accident prevention measures would eliminate or minimize the risk. That reasonableness is determined by whether it was scientifically possible and economically feasible to eliminate or minimize the risk.”

For the good of all Nebraskans, may we live up to the expectations of Harry Philo—one of the greats.

 
 

 

CALENDAR OF EVENTS

JUNE

NATA 2017 SUMMER MEETING
Thursday, June 22 - Sunday, June 25, 2017
Hilton Santa Fe Historic Plaza

Santa Fe, New  Mexico

SEPTEMBER

NATA BOARD MEETING
Thursday, September 28, 2017
Embassy Suites Omaha/LaVista
Hotel & Conference Center, LaVista


NATA ANNUAL DINNER
Thursday, September 28, 2017
Happy Hollow Country Club, Omaha

NATA ANNUAL MEETING & FALL SEMINAR
Friday,  September 29, 2017
Embassy Suites Omaha/LaVista
Hotel & Conference Center, LaVista