Editor: Ray, tell us about your practice.
Persons: I am located in the Atlanta office of the firm. My practice consists largely of representing businesses in cases involving complaints of personal injury, be it product liability, toxic tort or general liability. I have been a trial lawyer for 30 years, and I still love my work.
Editor: What is the nature of your involvement in Lawyers for Civil Justice (LCJ)?
Persons: My firm is an Associate Member of LCJ, and I am its representative. I feel honored to have been selected to be involved in LCJ. Although I haven't been in the organization very long, I became familiar with LCJ because of the valuable contributions it has made in civil justice reform. One of its aims is the enactment of reasonable e-discovery laws. That is a topic of particular interest to me because I am part of a group that is looking at the adoption of the federal standard for electronic evidence in Georgia.
Editor: Are you also involved in DRI?
Persons: Absolutely, in a big way. I teach at least one seminar a year for DRI. This year, I spoke at the damages seminar in Las Vegas, and I was also on the planning committee for the toxic tort and environmental law seminar that takes place around (but not at) Mardi Gras in New Orleans. DRI is one of the best sources of reference material for defense counsel. If you're faced with a new issue, you can contact DRI and get all kinds of good resource material.
Editor: How did you get involved in the Georgia group that is looking at the feasibility of adopting Federal Rules governing e-discovery?
Persons: Because I knew it was something that LCJ was working on, I rolled up my sleeves and got involved in a group that's looking at the feasibility of adopting, in Georgia, something patterned after the Federal Rule governing e-discovery. The group doesn't just include defense counsel, but also members of the business community and other segments of the bar. In order to get things done at the state level, you need widespread and representative support, and that is something we were mindful of in assembling our group.
Editor: I gather that what you're attempting to do is to persuade the Georgia legislature to adopt a counterpart of Rule 26 as it pertains to e-discovery?
Persons: That's right. We are following the path we pursued in the current effort to persuade the Georgia legislature to adopt a counterpart of the Federal Rules of Evidence. That effort started with the State Bar of Georgia evidence study committee, comprising defense lawyers, criminal defense lawyers, plaintiffs' lawyers and judges. Its proposal to substantially adopt the Federal Rules of Evidence was passed by the Board of Governors of the State Bar of Georgia in January. A legislative study committee was then established to draft the legislation. I am serving on an advisory panel to help with the drafting. A similar effort will be required should we move forward to adopt a rule for e-discovery.
Editor: How do you feel about the experience of being part of an LCJ effort to improve the law?
Persons: It's terrific. LCJ gave me the opportunity to apply my long experience as defense counsel to efforts aimed at improving the judicial process. Professionally it's tremendously rewarding to have a place at the table and to have some input in shaping these rules and trying to improve the civil justice system.
Editor: Do you feel your association with LCJ provides you with information about other developments of importance to you and your clients?
Persons: LCJ does a superb job of staying on top of the issues. I wouldn't have been as informed about the legislative developments relating to Section 502 were it not for LCJ. The fact that LCJ has kept me up to speed in addressing privilege issues has been very helpful to my work on the Georgia rules of evidence project.
Editor: How important was it for the LCJ to involve defense counsel like you as well as corporate counsel in testifying before judicial and legislative bodies about the need for rule changes and other reforms of the judicial process?
Persons: The beauty of LCJ is that it is able to provide both perspectives, bringing in-house and outside counsel together in a common effort. A lot of credence is given to people like me who work in the trenches and become familiar with the shortcomings of the existing rules and can support their observations with anecdotal evidence drawn from their own experiences. Our clients, who ultimately feel the pain, can speak first-hand about the additional cost and other burdens borne by them as a result of unnecessary and unfair rules. LCJ promotes collaboration between in-house counsel and outside counsel, bringing together their respective perspectives and experiences, thereby making a far more compelling case than if one group worked alone.
Editor: What are some of the benefits of having a counterpart of Federal Rule 26's treatment of e-discovery at the state level?
Persons: It would be a great convenience if the state and federal rules were virtually identical. Also, the thought and effort that went into the drafting of the Federal Rule make it worthy of emulation. Moreover, there is the inherent efficiency associated with uniformity.
Editor: We have been focusing on your personal involvement in LCJ's effort to promote the adoption of a counterpart of Federal Rule 26 in Georgia. I would now like to ask you about the benefits that some of the other efforts of LCJ confer on your clients. What about LCJ's successful efforts to support the adoption of FRE 502?
Persons: Insofar as the new Rule offers significant protection against inadvertent waiver of the privilege, it is of great benefit to clients. I'll give you an example. I'm involved in a case here in Georgia where in defending the case we produced the equivalent of 25,000 boxes of electronic data. That's so much data that if we were to assign a team of 14 or 15 people working 365 days a year, 24 hours a day, it would take about 7 years to complete the review. Technology enables us to use search terms and thereby reduce the need for a physical review of the documents. Under Rule 502, should we inadvertently produce something that is privileged, we don't waive the privilege.
Editor: LCJ has proposed amending Rule 26 to provide that an expert report is not required in the case of expert testimony by employees who are not accustomed to writing reports or a non-party, like a treating physician or an investigative officer, who might not even be prevailed upon to write a report. How helpful is the proposed amendment?
Persons: Based on my experience, it would be a very helpful change. We should eliminate rules that create artificial impediments to the admissibility of testimony by fact witnesses who happen to possess specialized knowledge.
Editor: LCJ also proposed amending Rule 26 to make drafts of expert opinions not routinely discoverable. Would this change be helpful?
Persons: Both plaintiff and defense lawyers that I have discussed this with would agree that drafts should not be discoverable. The current Rule forces people to go through exercises like making changes orally and hiring a consultant to discuss issues that would ordinarily be covered in meetings with the witness. It's just farcical and wasteful.
Editor: Another LCJ initiative is amending Rule 56 to change "should" to "shall" to mandate that a meritorious motion for summary judgments must be granted. Is this important?
Persons: Yes. Summary judgment is obviously a great way to clear the docket of cases that should not go forward. It is a waste of scarce resources and unjust if a case that's otherwise suitable for summary judgment is allowed to go to the jury.
Editor: LCJ is pressing for the universal adoption of the Daubert rule whereby the court passes on the qualifications of expert witnesses. Is this a worthwhile effort?
Persons: Although Georgia has the Daubert rule, I have practiced in courts that do not and know that it provides an incalculable benefit, and I don't use that term lightly. The adoption of Daubert has resulted in a significant reduction in the number of cases that are brought in Georgia where scientific or technical evidence is required.
Editor: What about LCJ's support for protective orders and the sealing of settlement agreements?
Persons: One of the greatest benefits of LCJ is its unwavering efforts to level the playing field. Maintaining the confidentiality of settlements is one of the most beneficial things that can be done. It facilitates the resolution of cases, thereby helping to clear crowded court dockets and save legal expense. The benefits of protecting the confidentiality of settlements outweighs the cost of deterring settlements occasioned by the loss of such protection.
Editor: Both LCJ and DRI have projects to improve the compensation of judges. What are your reactions?
Persons: I compliment LCJ and DRI on their efforts. If we are going to attract and keep good judges we've got to pay them appropriately. We can't afford to continue on the path that we've been on - with federal judges and most state judges not even getting adjustments in their compensation to cover the effects of inflation.
You're seeing many judges leaving the bench when they get to the age where they've got kids in college. In order to meet these additional financial demands, they may find themselves in a position where they have to leave the bench, and that's just not a good thing. Also, given the paucity of judicial compensation, it will become increasingly difficult to attract someone who has been in private practice for 15 or 20 years, gained the kind of experience and wisdom we desire in our judges, and yet has come to enjoy the economic fruits of their efforts. Nobody expects to become wealthy as a jurist, but neither should they be required to take a vow of poverty.
Published November 1, 2008.
