The practice of law

What is meant by the phrase “practice of law”?  A plumber may become a journeyman, but no one who works as a plumber calls it the “practice of plumbing.” So what is a “practice” and what makes being a lawyer a “practice”?

In his profoundly influential book “After Virtue”,  Alasdair MacIntyre provides an excellent description of what distinguishes a practice from a skill.  MacIntyre’s analysis of what constitutes a practice stems from his theories pertaining to ethics.  According to MacIntyre, virtue as the basis for ethics was largely abandoned during the enlightenment period.  Despite centuries of searching for a universal replacement basis for ethics e.g., utilitarianism), all such replacement efforts have failed.  This failure has led many people today to believe that, religion aside, there is no basis for ethical behavior.

MacIntyre argues that a basis for ethical behavior does exist, but it requires us to revisit virtue. Is such a return possible?

To make a return to virtue based ethics plausible, MacIntyre first defined a virtue. MacIntyre argues that a virtue is what enables us to achieve excellence in a practice.  The game of baseball is a simple example of a practice, but throwing, hitting or catching a baseball are not.  A professional baseball player certainly earns lots of external goods by playing baseball, such as money and perhaps fame.  But what makes it a practice, according to MacIntyre, is that it involves internal goods.  Internal goods are those acquired in the course of trying to achieve excellence in the practice.  A baseball player must have the fortitude to forget failure (striking out, batting slumps, errors) and remain positive to help him and his team succeed. By listening to coaches who praise and encourage such fortitude and by watching older players who act with fortitude, young players develop the character, or virtue, that will enable them to be successful at the practice of baseball.

What does all this have to do with the practice of law? Quite a bit. The practice of law is not a collection of tasks, such as writing, arguing, negotiating.  The “practice of law” begins with the pursuit of the excellence in the legal profession, which is obtained through acquiring and exercising certain virtues that are necessary to achieve that excellence. Certainly courage and fortitude are such virtues, but there are several others that are involved in the pursuit of achieving excellence in the law.  What separates the great law firms from the pack is the degree and manner in which they focus on the internal goods that are part of the practice of law, rather than the external goods, such as billable hours. Billable hours keep the doors open, but excessive focus on the bottom line encourages attorneys to cut corners and lose focus on the virtues that underpin the practice of law.  This is why the culture of a law firm is crucial not only to the development of attorneys, but to the ability of those attorneys to deliver results for their clients.

Larson and the Two Disease Conundrum

Perception is often stronger than reality. In Michigan, it is commonly thought that with respect to asbestos litigation, Michigan is a “two disease state.” That is, many believe that a person can bring multiple lawsuits against the same defendants for the exact same asbestos exposures.  This perception is based upon an incorrect interpretation of Michigan case law and is perpetuated by the nature of how asbestos claims are handled in Michigan.

The general rule in Michigan is that subsequent damages do not give rise to a new cause of action.   Larson v Johns-Manville Sales Corp, 427 Mich 301, 304-305; 399 NW2d 1 (1986),, citing 51 Am Jur 2d, Limitation of Actions, § 136, p 706 (“Thus, if there is a coincidence of a negligent act with the fact of some damage, the cause of action comes into being and the statute of limitations begins to run even though the ultimate damage is unknown or unpredictable”).  In Larson, two of the four consolidated Plaintiffs knew of, or should have known, of their asbestosis diagnoses and subsequently developed cancer. Because the Plaintiffs’ asbestosis occurred more than three years prior to the filing to recover for asbestos-related cancer, the Defendant argued that Plaintiffs’ cancer claims were therefore time barred, as there had been a “coincidence of a negligent act with the fact of some damage.” The Larson Court carved out an exception to the general rule that subsequent damages do not give rise to a new cause of action:

[W]e hold that plaintiffs who develop asbestosis may bring a suit within three years of the time they discover or should have discovered their disease. We also hold that plaintiffs who develop cancer which may be related to asbestos exposure, and who have not brought an earlier action for asbestosis, may bring an action to recover damages for cancer within three years of the date they discover or should have discovered the cancer.

* * *

We believe that discouraging suits for relatively minor consequences of asbestos exposure will lead to a fairer allocation of resources to those victims who develop cancers.  Rather than encouraging every plaintiff who develops asbestosis to recover an amount of money as compensation for the chance of getting cancer, we prefer to allow those who actually do develop cancer to obtain a full recovery.

Id at 319 (emphasis added).

Given Larson’s general rule against allowing claims for later discovered damages and the fact that Larson does not carve out an exception for those who have actually filed an asbestosis lawsuit, it is difficult to understand where the “two-disease state” belief comes from.  Yet, some Courts and several attorneys continue to maintain that Michigan allows a person to file an asbestosis lawsuit and then, many years down the road, file a second lawsuit for cancer.  This arises from a couple of factors.

Only a handful of cases have gone to trial and, therefore, this issue has  not been preserved for appeal.  Motions for Summary Disposition are not likely to provide an avenue for appeal, either, as plaintiffs’ counsel are too savvy to appeal this issue and risk an adverse published opinion. We can say this based on personal experience.  To a defendant, a loss means the case proceeds to trial or settlement and  takes us full-circle to where we started i.e. few cases in Michigan are tried to a verdict.

The number of asbestos lawsuits in Michigan is declining. Nonetheless, an increasing number of cases are re-runs, in which the plaintiff filed for asbestosis several years ago and is now looking for a second bite of the apple.  So long as the system tolerates this duplication of litigation, a plaintiff attorney must file the claim or risk depriving her or his client of a recovery that might be obtained by the next plaintiff attorney.  At some point, our appellate courts need to get a chance to get involved and provide some much-needed guidance.


A Corporate Witness in Asbestos Litigation

One of the lessons a young attorney learns once he begins the practice of law is that there is a major difference between the theory of law and the practice of law. The rules of law you study in law school are no different than those that exist in the “real world”, but the influence of factors having nothing to do with those rules often won or lost cases. Early on I endured many frustrating days where it seemed to me that the law was a secondary consideration.

Over the past few years, however, I have come to appreciate that this is not always a bad thing.  Sometimes disregarding generic rules is what justice requires in specific cases. This is particularly true in the asbestos litigation.

Asbestos litigation is unique due to its “historical” nature.  Due to the latency period involved in asbestos injuries, most cases involve exposure that took place in the 1960s through the 1980s.  It involves products and companies that have not existed for several decades.  Consequently, a defendant in asbestos litigation may lack the most basic knowledge of the company that made the product, as well as the product itself. That is not a concern in any other litigation. This distinction renders the application of state and federal “corporate witness” rules, modelled by Federal Rule of Civil Procedure 30(b)(6) a major challenge for asbestos defendants, and a major weapon in the hands of Plaintiff attorneys in asbestos litigation. In the present asbestos litigation climate, where peripheral defendants are being targeted as the number of viable defendants decreases, understanding your obligations to produce a corporate witness is vital.

Two articles that do an excellent job of laying out the challenges facing an asbestos defendant faced with a deposition notice for a corporate witness, and the need to revisit the continued application of Court Rules pertaining to corporate witnesses in the asbestos litigation context are Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) and Alternative Mechanisms, 50 ALA. L. REV. 651 (1999) and Corporate Representative Depositions, 65 Baylor Law Review 938 (2013).