Defense Counsel Journal

Editor's Page - Volume 88, Number 4

Volume 88, No. 4

January 26, 2022

Parkerson_Christopher_2020_sized Christopher B. Parkerson

Christopher B. Parkerson

Christopher is the Defense Counsel Journal Editor for 2020-2022. He is a Member of Campbell Conroy & O’Neil, P.C. and serves on its Board of Directors. Christopher has extensive trial experience representing national and international corporations in the defense of catastrophic product liability, commercial, intellectual property, professional liability, and negligence matters throughout the United States. Christopher’s jury trial experience, combined with his work ethic and approach to the lawyer-client relationship, has allowed him to successfully guide clients through all aspects of litigation from Lead Trial Counsel to guidance on such issues as pre-suit ADR, witness preparation, and mock trials.

I have been fortunate over the last several weeks to enjoy some live sporting events in various locations around the country. I attended my first Arizona State Sun Devil football game with my daughter, Emily, who is a first-year student at ASU. I was also able to watch my University of Arkansas Razorbacks get blown out by the Georgia Bulldogs in Athens with my good friend, Brad Marsh. In addition to college football games, I also attended the Boston Red Sox and New York Yankee Wildcard matchup in Fenway Park with my law partner and friend, Jim Campbell. Listening to all the fans sing Dirty Water after a Red Sox victory was such a great experience especially when it meant the Red Sox moved on in the playoffs and the Yankees went home. 

The point of this note isn’t a trip down memory lane for sporting events. The issue I want to focus on is how fans from different backgrounds and with a vast array of experiences can come together and get behind the home team. It isn’t unique to any place. One doesn’t need to have traveled much to know that Tempe, Arizona is very different from Boston, Massachusetts which in turn is very different from Athens, Georgia. The cities and states are a mix of blue, red, and purple. Regardless of the differences in perspective and experiences, each fan group puts aside all differences and focuses on the common goal of cheering for the home team. In each of the stadiums, I sat amongst Democrats, Republicans, Libertarians, and every mix and combination of political leaning. Each venue had people of different religions, races, and ages, but every one of those differences was set aside when it came time to introducing the home team. Everyone, despite a likely myriad of personal beliefs and circumstances, stood and cheered when the home team scored or made a good play. Differences were set aside and the collective focus of getting a conference win or advancing in the playoffs became the sole focus. Loud cheers, chants, and songs were universally shared among all because the common goal of victory for the home team came above any disunity that existed. The home fans root, root, rooted for the home team.   

My hope is that as the United States of America presses forward in difficult and challenging times, Americans must remember that we are pulling for the home team. We all want a healthy and safe society. The job of solving problems, whether it be the best way to address the COVID-19 pandemic, infrastructure improvements, tax policy, or any other issue facing the country should not be seen as a zero-sum game that has winners and losers based upon party affiliation or political leaning. We must come together and address the problems facing our country. That means listening, compromising, and creatively addressing problems in a way that responds to the concerns of the people. Our government, and that includes our courts, are losing credibility with the public because people do not see it addressing their needs and concerns. 

Coming together means that differing points of view cannot be labeled as evil, anti-American, or dangerous. George Washington warned in his farewell address that political parties can weaken the government because the parties will seek power and take revenge on political opponents. These wise words were not heeded, and we now find ourselves in a situation where representatives of all sides of the political spectrum are more focused on scoring political points than making sure the country’s problems are solved. News organizations love to rank the winners and losers of every debate, policy discussion, or compromise. Social media adds steroids to this type of discussion. 

What can we do about it? As lawyers, we need to do our part to demonstrate civilized debate and respect for opponents. We need to set examples of intelligent compromise. We need to be respectful to healthy debate and not contribute to the winner/loser analysis that the 24-hour news cycle generates. We need to help lead the country and teach young people that reaching an agreement does not mean you win or lose but that you prioritize important issues and fight for a good outcome that both sides can accept.      

This edition of the DCJ contains three outstanding articles. “Center of the Circle: In-House Counsel, the Crime-Fraud Exception and ‘Reasonable Suspicion’” by Mark J. Fucile is an excellent article reviewing the body of law surrounding in-house lawyers and attorney-client privilege. It is a well-researched and thorough discussion of the various issues faced by in-house counsel as it relates to the crime-fraud exception. “Turning the Tables: Non-Retained Experts for Defendants” by Chad R. Hutchinson and Stephen P. Huwe is an outstanding article that analyzes the rules and privilege consequences of disclosing a current or former employee as an expert. In my practice, the potential for an in-house expert is always a possibility, and this article gives a lot of very helpful analysis into issues that may arise with such a decision. There is also a great best practices section in the article that can be shared with your law partners or associates. “The A312 Performance Bond is Not a Blank Check” by David W. Kash and Bruce Kahn is an interesting review of the rights, obligations, and responsibilities of the surety and obligee for an A312 Performance Bond. The article reviews several cases addressing these issues and provides thoughtful commentary on the topic. 

In addition to the DCJ, we also completed our fourth podcast this month. It is an interview with Peter J. Pizzi about social media and the immunity it enjoys under Section 230 of the Communications Decency Act of 1996. It is an insightful discussion on how current events involving social media have caused new debates related to Section 230 and what some of the criticisms and arguments are regarding potential changes in the law. Please visit the Podcast page on the IADC website and check it out.