Toxic Tort: ‘Make the Complex Simple’

Jason Eckerly speaks on his expertise in toxic tort, and how he follows his firm’s phrase of making ‘the complex simple’.

What is the biggest challenge you face when preparing corporate witnesses for testimony at trial?

The biggest challenge in preparing a corporate witness for trial is helping the witness provide testimony that is not overly complicated or technical. In fact, that is actually Segal McCambridge’s tagline: ‘Segal McCambridge: We Make the Complex Simple.’ Corporate witnesses are generally very smart people and they are genuinely interested in discussing the background of their company and explaining to a jury the underlying events of a case. They are not professional witnesses, however. Rather they are engineers, accountants, or other trained professionals who are deemed by the company to be the person most knowledgeable regarding certain issues. My job is to help them convey their message, which can sometimes be highly technical, in a way that is understandable to a jury. The preparation has to be geared to the individual witness. My job is to make certain they are comfortable and confident, so as to allow them to communicate effectively with the jury and handle cross-examination.

What further challenges do you face during mass tort litigation?

One of the biggest challenges with mass tort litigation is the volume. The management of such litigation is difficult for attorneys, judges, and court administrators. From an administrative perspective, the continued implementation of on-line dockets and filings has helped immensely with these challenges.

What’s special about this type of litigation is that the attorneys involved become highly specialised and very knowledgeable. This helps in assuring that the resources available to help the aggrieved parties end up in deserving hands.

What has been your most complex case and how did you work around the difficult nature of it?

I defended an alleged mesothelioma case where I questioned the diagnosis itself; I did not believe it was the correct diagnosis. The plaintiff had been treating at one of the top cancer centres in the United States and his treating physician included mesothelioma in the differential diagnosis. Before the treating physician could make an actual diagnosis, plaintiff’s counsel stepped in and transferred plaintiff’s treatment to a doctor counsel regularly uses as an expert. The diagnosis revolved around the pathology, specifically the staining. I spent countless hours researching the specific stains and pulled articles relating to each. At the expert’s deposition, I conducted a highly technical examination, so much so that the plaintiff’s attorney asked if I had gone to medical school. The time spent preparing for that deposition was well spent, as it ultimately affected the result in the case. When we got to trial, we settled on behalf of our client following openings. Plaintiff’s counsel knew that the attorneys for the co-defendants did not understand the medical defence as I did and wanted our client out of the case, so that I was not able to handle the medical defence for all of the defendants.

What are your top three tips when trying to develop global defence strategies?

At the outset, determine the client’s goals and expectations. If these are unrealistic, explain why and offer alternatives. It does no good to make promises that cannot be kept or to set unreasonable expectations.

Next, get input from the proposed corporate witnesses on the theme of the defence. These are the individuals that will be explaining the case to the jury, so it is best that they help to shape the global message at its inception.

Finally, get the entire national defence team together to discuss the global strategy and plan. While this helps to get everyone on the same page, it also helps to foster a true team culture, which is important in national litigation. The global defence strategy will likely evolve over time—and it should—but it is important to keep all team members updated with new witnesses, themes, documentation, and strategies that arise as the course of litigation progresses.

What is the most motivating aspect of your role?

First and foremost, I am motivated by doing right by my clients. I feel honoured that they have chosen our firm to help them with their problems, especially when there are so many options in today’s legal environment. Second, I am motivated by the other attorneys I work with daily, both from my firm and opposing counsel. I see how others approach problems and try to learn from their success or failures. Finally, like any litigator, the overall motivating factor is knocking one out of the park for your client, be it a motion, deposition, or trial. There is no better feeling than winning a long fought battle and knowing that your defence strategy was successful.

If you could change one thing about the legal sphere, what would it be?

The civility of the profession. While the great majority of attorneys are polite and honourable, there remain those that are not. In my experience, the client is generally done a disservice by counsel who acts in such a way. For example, in a recent case the opposing counsel, who has a reputation for being very difficult, showed up to the pre-trial mediation and demanded settlement of three-times the state’s applicable damage cap – by any measure an unreasonable demand. We explained the damage cap and the inability to consider this demand. In response, opposing counsel then cursed and threatened us. Such actions, both by way of opposing counsel’s ignorance of the damage caps and his unprofessional behaviour, has most assuredly bought his client a trial that might otherwise have been unnecessary.

Jason Eckerly | Segal McCambridge

312 329 6553 Direct | 312 645 7800 Main

www.smsm.com

I am a senior shareholder in Segal McCambridge Singer & Mahoney’s Chicago office. I am a trial attorney focusing my practice on litigating toxic tort, product liability, general liability, and complex commercial matters throughout the country.

I serve as national coordinating counsel and local counsel for large corporations in product liability litigation, developing and coordinating global defence strategies. In this role, I work with clients in assessing and analysing risk, developing long-term strategies, training local counsel, and implementing case protocols.

I have acted as trial counsel in courts in California, Illinois, Iowa, Michigan, New York, and Pennsylvania.

I also recognize the duty of our profession to help others vis pro bono work and volunteering, serving as the Co-Chair of Segal McCambridge’s Pro Bono and Public Service Committee. The Committee is charged with promoting the firm’s pro bono efforts and increasing the firm’s commitment to pro bono and community service. Through the years, I have volunteered my time through a number of different pro bono organizations. I am currently the firm’s liaison with the Chicago Bar Foundation’s Investing in justice campaign.

I earned my undergraduate degree at Michigan State University and my J.D. at DePaul University College of Law. I am admitted to practice in the State courts of Illinois, Michigan, Missouri, and Pennsylvania, as well as seven US District Courts. I have also been admitted to practice in States throughout the country.

Segal McCambridge Singer & Mahoney is a litigation firm providing legal services to clients involved in complex product liability, toxic tort, commercial, employment, insurance, construction, environmental, professional liability, transportation, warranty, and technology and cyber risk matters. Founded in 1986 as a four-lawyer shop in Chicago, today Segal McCambridge is a national law firm with more than 140 attorneys with offices in Austin, Chicago, Detroit, Jersey City, New York City, Philadelphia, and St. Louis. I have been fortunate to be a part of the firm during the intense growth it has had over the years.