Messages from the President

 

ABPLA President

March 13, 2019

PRESIDENT’S ADDRESS:  March (Part 2) 

This past month I enjoyed the opportunity to speak with three legal giants, two past presidents of the American Board of Professional Liability Attorneys (ABPLA), and the immediate past president of the National Board of Trial Advocates (NBTA).

In this, Part 2 of my March address, I share the unique insights I gained from speaking with William F. McMurry, a past president of the ABPLA. 

William F. McMurry, is the founder of William F. McMurry & Associates located in Louisville, Kentucky.  This year marks Bill’s 40th year of trial practice helping people across Kentucky recover compensation as a result of medical and legal malpractice, catastrophic personal injury and wrongful death. He is board certified in both medical and legal malpractice. Bill served as ABPLA president from 2010 – 2014.

Q:  Tell us your thoughts about board certification in general, and your service and commitment to ABPLA in particular.
A:  How I feel today?  I have a real sense of dread and concern over the future of all board certification groups.  So much has changed in the years I have been with the ABPLA as not long after the ABA took up accreditation, they will likely depart in 2023.  This should serve as a wake-up call to all certifying organizations to come together and unite under one accrediting authority.
I am prideful that during my service as President of the ABPLA we achieved accreditation by The Florida Bar, so that lawyers in Florida could, for the first time, hold themselves out as board certified “specialists” in medical malpractice and/or legal malpractice. During the same timeframe the ABPLA had to undergo re-accreditation by the ABA, which was a massive undertaking.  We achieved re-accreditation for the first time during my service and I am so grateful to Tom Sartwelle for his unflinching push to make it a reality for all of us.   
As time has gone by, I have also watched with interest the emergence of ideas about having an umbrella organization that could take up the role of marketing to increase awareness of board certification. Marketing is something the ABPLA and other organizations could not likely afford, but it is essential for educating consumers of legal services about the importance of board certification.
An umbrella that would educate consumers of legal services that board certification results in the consumer getting the best lawyer in a particular area of law.
However, it appears we have now come full circle with the ABA giving us some indication that they could back out.  As such, I think now more than ever, we need leadership in some organization to take up the responsibility of giving credibility to organizations like ABPLA.
I will tell you that if we don't prepare and have a new accreditation authority by 2023, we are going to have real problems. If the ABA steps out, I will then be in violation of Kentucky’s rules which only permit one to say they are Board Certified if “accredited by the ABA.” 
Originally, Kentucky allowed me to state my specialties as a result of Peel v. Illinois State Bar.  The Peel decision was cited in the early version of the KY Code of Professional Responsibility saying in effect that you cannot say you are a specialist unless you are board certified by an organization “like” that referred to in Peel
And so, if the ABA steps out of the business of accrediting specialization boards, I believe Kentucky will begin to look with interest at all the new “pop-up” organizations we see on the horizon, and I fear they will use the ABA’s departure as a reason to cease sanctioning the use of the word “specialist.”  Now more than ever we should we give serious thought to an umbrella organization rising to the occasion before the ABA steps out of the credentialing business.  
 
Q:  What are your thoughts regarding the board certification in professional liability cases offered by ABPLA?   
 
A:  I think ABPLA is the best of the board certifying organizations.  We offer a degree of specialization required to assure consumers that our attorneys will perform with excellence in the most challenging of all legal specialties.
Medical and Legal Malpractice cases are the toughest cases there are, and unless you've got a superior group that has the deep history of excellence and has the framework to put applicants through the rigors, the consumer suffers. 
But, you know it's obvious that our organization is handling a specialty that is not easily undertaken by states. That's why we don't see medical malpractice board certification from many states. Some states offer legal malpractice board certification, but I don't even think they require a single jury trial, all you must do is take some depositions. At least this was the situation in California when I reviewed its regulations a few years ago.

Q:  Let's talk for a moment about the qualifications for board certification by ABPLA.  Given that it is becoming increasingly more difficult for younger lawyers to gain trial experience, do you think standards should be lowered in terms of trials required, or do you think that would have an adverse effect on board certification?
A: Well, you know Randy, we probably have no choice but to match our requirements with the training reality of the applicants who might want to become board certified, and who have the talent and the skill to carry on and do a good job in professional liability cases.
We know that trial experience is number one. The very foundation of a specialist is to first be a trial lawyer, which the NBTA has adequately captured in its “performances” requirement.  We will always require the applicant to be a civil trial specialist before a medical or legal malpractice professional.  But, I do think we have to be realistic about the extent of training which is realistic and how this degree of experience relates to a specialized level of skill and ability.
And there are other ways - I remember attending one of those demonstrative trials that ABOTA put on in Nashville one year - and I was very impressed, and believe that young lawyers watching could learn a lot by attending and the ABPLA should give credit for such attendance. There are also programs put on by various colleges requiring active participation and I think young lawyers should get credit with the ABPLA for attending those programs.
I think bench trials, as long as they are adequately complex, and perhaps other proceedings such as injunctions - you know I had an injunction hearing that went on for three months last year - could be considered for credit, but we have to have some kind of limitation on such events and how they would qualify.

Q:  Do you believe that as we move forward, fewer and fewer cases are going to be tried such that in a generation or so there just aren't going to be many trials?
A:  From and including 1998 through 2014, seventeen (17) legal malpractice cases were tried to verdict in Kentucky.  Since 2014, no (zip, nada, none) legal malpractice cases have been tried to verdict in Kentucky.
If this is the reality, we need to understand this reality, understand where the talent can be identified, and match our requirements to the abilities of that group. Otherwise, we are all going to be dinosaurs and dead and there won't be anybody left.
However, today, I think that we do have to give some thought about giving credit for serving second chair. Maybe more than we have in the past. And the reason I say this is because you've got folks out there that want to get board certified, that see the value of board certification, and if they can get a leg up through second chairing, there are a lot of lawyers that would allow [an applicant] to come in at the last moment and second chair in an effort to allow them to learn. They wouldn't have to be part of the firm to get second chair experience.
I would be willing to allow somebody who wanted to get trial experience to second chair - I don't want to take them into my firm as an associate necessarily - but I see that opportunity as being extremely valuable.  Somebody second chairing is getting a rich, quality experience, I think, because there's so much more at stake when a case gets tried today. So giving second chairs this opportunity is something that ought to be encouraged among our membership.
You know, we are seeing a large number of car wreck cases being tried in Kentucky, and it's giving those lawyers good experience. But, are those lawyers gravitating to the field of medical malpractice?  The answer is “no”.
But, if those lawyers were to step out of the car wreck firms and make a lateral move to a professional liability firm, they would be well-suited to taking a case on their own after sitting through a few second chair experiences. These car wreck lawyers are getting a lot of trial experience, but they're not working in firms that do med mal or legal malpractice work.

Q:  Don't you believe that there is a lot more involved in handling a professional negligence case than that of a car wreck case?
A:  Sure, you might not even be required to retain experts in a car wreck case. You might put a doctor on, but that's about it. I am not downplaying the seriousness of the injuries that may be involved, but it's not as challenging as understanding neurosurgery or anesthesia, and the stuff we get confronted with literally daily.   With this said, there are car wreck trials which do involve the use of engineering experts, vocational economists, neuropsychologists and often neurologists in traumatic brain injury cases.  These trials require a high level of skill and the attorneys handling these complex car wreck trials should be recognized for their skills.
As long as there is medical malpractice, will always be board certification “qualified” defense lawyers. It's the plaintiff's bar that needs to be our focus of concern. We've got to do something to keep viable board certification for the plaintiff's bar in professional liability.

Q:  ABPLA has ABA accreditation through 2023. At the recent ABA meeting (Winter) in Las Vegas, the subcommittee on legal specialization indicated that the ABA had no intention of leaving accreditation, but are examining all aspects of the process. Following up on your earlier response, do you still think it is in the best interests of board certification to have a contingency plan in place?

A:  There needs to be, and I think it should happen between now and 2023 because I strongly believe that if the ABA changes course, we must be ready with an umbrella organization.   
Again, in my opinion, states like Kentucky are going to refuse to allow use of the descriptive “specialist” if the ABA actually steps down. And, I know, they are saying now . . . “don't panic, no worries, we’re in this, you've got your accreditation through 2023”. But there certainly have been indications that this is not sustainable financially for them, and I would like to see all of the legitimate organizations that add value to consumers of legal services come together and create an Academy or a College or whatever you want to call it and have everyone under the same umbrella. 
Now more than ever before, we must remain relevant if this “high-level” professional liability practice will be available to consumers.  And by that we've got to encourage membership.  We've got to be creative and we've got to open our eyes to the reality of who is qualified. Who is truly qualified in the land where arbitration is really taking hold?

______________________

 

ABPLA is very fortunate to have Bill continue to serve on our board, as well as on our Oversight Committee, and our Standards Committee. Bill's work obtaining ABA accreditation for ABPLA gives him unique insight and, frankly, enabled me to hit the ground running.

 

While some of Bill’s message may have caused alarm, let me assure you it was not meant to be alarming. Rather, it simply reflects the work done on behalf of board certification, and therefore, ABPLA, on a day to day, month to month, year to year, basis, by all of our volunteers, board, officers, etc.

 

As I indicated in Part I of my March address, at the end of this month, Reeve McNamara and I will attend the ABA roundtable meeting held in Chicago Illinois. We will have considerable more information to share at that time. However, I do want you to rest easy. At the recent winter convention of the ABA in Las Vegas, Nevada, the specialization committee assured us that they had no plans of going anywhere.

 

Nonetheless, if board certification is important to you, let me again urge you to get involved. Come to our New York Conference in May. If you haven't been a conference attendee in the past, introduce yourself. If you have time to get involved, volunteer. If you can work on a committee, volunteer twice. If you have input on an issue raised by Tommy, Bill, myself, or anyone with ABPLA, please speak up. Together, we can protect the importance of board certification!

 

Randall H. Scarlett
Scarlett Law Group
536 Pacific Avenue
Barbary Coast Building
San Francisco, CA  94133

 

 

 

ABPLA President

March 6, 2019

This past month I enjoyed the opportunity to speak with three legal giants, two past presidents of the America Board of Professional Liability Attorneys (ABPLA), and the immediate past president of the National Board of Trial Advocates (NBTA).  It is therefore only appropriate that I share the unique insights I gained from Thomas William Malone, William F. McMurry, and Jack McGehee.

For the hour or so that I spent breathing the rarefied air that surrounds these gentlemen, I became inspired and motivated. I hope sharing their words does the same for you!

This month, I begin with Tommy Malone. 

Thomas William Malone, (Tommy), is the founder of Malone Law located in Atlanta, Georgia. For more than 40 years he has litigated cases involving catastrophic personal injury and wrongful death. He is board certified in medical malpractice. Tommy served as ABPLA president from 2006 - 2010.

Q:  I know you were board certified in the area of medical negligence by ABPLA in the 1990s. What drew you to board certification?

A:  Larry Smith drew me to board certification. He thought it would be good for me, and good for the group, and so I joined, and it's an interesting story. As I recall, I was on the board since becoming certified and I said at one of the last board meetings in 2005 that I wasn't coming back to any more meetings because we didn't do anything to get the word out.
You know, I had envisioned public service announcements, ads in magazines, stuff like that, to let the general public know the benefit of board certification. And I still think that would be a good idea to promote the concept of board certification throughout the public.  And then the public - imagine a doctor needing a defense lawyer being offered 10 different lawyers - two who were board certified and the others not. Who is s/he going pick?
So, at any rate, I told them I wasn't coming back, but I got a call from one of the board members asking if I would agree to serve as ABPLA president. The board agreed more needed to be done, and the organization faced some challenges at the time, so I agreed.

Q:  Let me ask you about the qualifications currently required to receive board status.  In this day and age, and I guess court dockets pan this out, there are fewer and fewer trials taking place. Consequently, younger lawyers have less trial experience. Do you believe the trial requirement should be eased, or that the qualifications generally should be eased for new applicants?

A:  Well I think you could have two classes of membership. One group could be a member of the organization, but not board certified, until they met the requirements. But I do think our requirements are rather minimal. You know, you can't certify somebody that couldn't meet with the client in their office, sign the case up, investigate it, file the suit, obtain appropriate affidavits, proper workup, and try the case. You can't have them learning how to do it after they are board certified.

 

Q:  What do you think certification organizations such as ABPLA, NBTA, and others should do to promote awareness of the benefits of board certification?

A:  A massive media campaign. I've always thought that should take place. The organizations have to organize the message and promote it, but individuals that are board certified have to spread the message as well.

Q:  Tell me what your thoughts are with respect to medical malpractice in general. Throughout your career you have flourished handling medical malpractice cases. Yet these cases seem far more difficult than a more basic personal injury action. What are your thoughts?

A:  Oh I think it is one of the most challenging areas of the law. Certainly more difficult; all of the nuances, statutory regulations requiring affidavits from a doctor who is of the same specialty and has the experience in the field that is under consideration. And then the question of causation is much, much more difficult than in other cases such as a wreck case, where causation can be obvious.

Q:  What is an important message to deliver to prospective applicants regarding the board certification process?

A:  One thing that is not done adequately, I don't think, and it causes lawyers at the top of their field to not want to be board certified is because they have to pass an exam. And, everybody that is doing well in the field, without being board certified, don't want to run the risk of taking the exam and failing. But I was able to tell everybody that they would pass the exam, I was confident that they would, because I knew that they had tried cases, and were proficient in the field. It's not like the examination tests how smart you are, but instead it tests your proficiency and knowledge in the general area. 

Q:  Many of us have followed your battle with cancer. How are you doing today?

A:  Well, I am married to Florence Nightingale. I was told when I was diagnosed with stomach cancer in February of 2016, that if the chemo worked as well as could be hoped for, I had 9 or 10 months. That meant I would be lucky to make it Christmas, 2016. And, here I am, and there was no radiation, no surgical options, and I've gained 29 pounds through the shakes that Debbie (Florence Nightingale) makes me drink. And I'm hanging in there to everybody's surprise, including mine, and the worst part of it is chronic fatigue. It took me a year to learn how to answer the question. People would say "how are you doing", and I've got the answer for that now. I say "all things considered I’m doing fantastic!"

 

So, Tommy spoke, and we listened. I want you to know that just this past week, ABPLA Standards Committee met, under the leadership of Tom Sartwelle.  The purpose of our Standards Committee is to constantly review the qualifications required by ABPLA for an applicant to become board certified. The Standards Committee will report to the Board at our next board meeting in New York this May.

Additionally, our executive director, Reeve McNamara is currently working on several fronts, both for our plaintiff and defense lawyers in order to develop material as well as relationships beneficial to our board certified brethren.  For example, we expect to shortly be able to hand an entire packet of materials, including a video which may be placed on member’s websites, discussing the benefits of board certification. It is but one step in getting the message out. Additionally, with the assistance of several of our board certified defense lawyers, we will be meeting with medical malpractice insurance carriers in order to discuss the advantages of retaining board certified attorneys.

As I recently mentioned, Reeve and I will be attending the ABA Roundtable meetings. The ABA has indicated some desire to help educate the general public as to the benefits of board certification. Exactly what they have in mind, we do not know, but following the Roundtable, I will be sure to report.

Later this month I will present my discussions with Jack McGehee and William McMurry. My hope is to allow their words to motivate you. Get involved! Meet us in New York in May for our conference. Take a moment now and go online and sign up. Send an e-mail out with your thoughts and ideas about how to make your organization better. See you all in New York!

 

Randall H. Scarlett
Scarlett Law Group
536 Pacific Avenue
Barbary Coast Building
San Francisco, CA  94133

 

 

ABPLA President

February 7, 2019

Forty-eight years ago, in February of 1971, the first attorney specialization certification program in the United States was announced by the State Bar of California, California Board of Legal Specialization. Notably, it began operations in 1973 with three practice areas initially available: workers' compensation, criminal law, and tax law. (The program has expanded to certification in approximately 12 select areas of law today).

 

You will be proud to know that the American Board of Professional Liability Attorneys was first organized in 1972. Without doubt, our organization has led for 47 years as one of the oldest board certification organizations for attorneys. Just to give you some depth, it was in 1973, at the Sonnett Memorial Lecture at Fordham Law School, that Chief Justice Warren Burger stated... "Some system of certification for trial advocates is an imperative and long overdue step."  We had already been in existence for one year by the time the Chief Justice stated the obvious need.

 

Between 1971 through 1990 seven specialty boards were formed. Five of these boards were formed by the states of California, Texas, Florida, Minnesota and North Carolina, while two of these boards were formed by not-for-profit organizations, namely the American Board of Professional Liability Attorneys (ABPLA) and the National Board of Trial Advocates (NBTA, which was formed in 1977). All of these boards have been in continuous operation since formation and their relationships are truly collaborative. I have learned this firsthand in recent months in working with our Executive Director, Reeve McNamara. Reeve has had to endure my naiveté as he has patiently brought me up to procedural speed while dealing with the interaction of all of the certifying boards, as well as the American Bar Association.

 

The American Bar Association became a guiding force for legal specialization beginning, at least, in the early 1990s. The ABA developed accreditation standards, and the ABA formed a Standing Committee on Specialization.  Legal specialization continued to grow from the early 1990s to present. In addition to the five state boards noted above, six more states developed specialization programs including, Arizona, Louisiana, New Jersey, New Mexico, South Carolina, and Tennessee. Accordingly, as of today, there are a total of 11 state boards and 7 nonprofit national boards which offer approximately 49 specialization areas.

 

Last month, Reeve and I attended the ABA Standing Committee on Specialization meeting held in conjunction with the ABA winter convention. Given that ABPLA standards meet, and exceed, the ABA accreditation standards, 23 states accept ABPLA board certification without more. Certain states, however, including California, Texas and Florida, require more. I am happy to report that your ABPLA board certification is recognized by all states in the United States save for Maine, Maryland, Oklahoma and West Virginia. (Even in these states we have board certified lawyers). With respect to the ABA, we are approved through 2023. With respect to the other states, thanks to Reeve's hard work, we remain current and are on top of all ongoing requirements by those states. So, were this a "state of the union", ABPLA remains strong!

 

However, our work has not even scratched the surface of what needs to be done. Just consider this: approximately 82% of physicians attain board certification. Contrast that with approximately 3% of the total lawyers that attain board certification.

 

So, once again I call upon each of you to get involved! We have many committees that are continuing the active work of ABPLA.  The Membership Committee constantly examines the membership criteria of our organization (which is an ongoing active debate), and develops outreach in order to actively recruit eligible attorneys. The Conference Committee plans our annual conference, arranges for speakers, sponsorships, exhibitors and otherwise handles all aspects of our Medical/Legal Conference. Our Advisory Committee looks to long-term planning of our organization, itself. Our Board is diverse and active. So, please get involved. Many of our diplomate's speak at various conferences throughout the United States. We have developed a short PowerPoint presentation that can be given at the introduction or conclusion of each such speech. The benefits of board certification are briefly discussed. Please contact Reeve ([email protected]), and ......... get involved.

 

Lastly, if you did not do it last month, stop what you are doing right now and calendar May 2-4, 2019 at the Park Lane Hotel in New York City. That is the date of our National Legal & Medical Malpractice Conference. It is a unique three-day CLE for both plaintiff and defense attorneys who have an interest in professional liability. We have an all-star faculty.

 

I look forward to a busy February and an even more busy March. Reeve and I will likely be attending the ABA National Specialization Roundtable in Chicago on Monday, March 25, 2019. May is right around the corner. I hope to see you all in New York City!

 

Randy

 
Randall H. Scarlett
Scarlett Law Group
536 Pacific Avenue
Barbary Coast Building
San Francisco, CA  94133
www.scarlettlawgroup.com
415-352-6264
415-352-6265 (fax)
800-262-7576
 


ABPLA PresidentJanuary 22, 2019

First of all, Happy New Year! This year has started off with a "bang" at the ABPLA.  The subcommittees we formed at the Board Meeting last year in Chicago hit the pavement running, and their work guarantees a phenomenal year for our organization. But, more about that later.

 

I start by referring to a law review article written by our esteemed Vice President, Thomas P. Sartwelle.  Tom was published in the South Texas College of Law Houston Law Review, Volume 59, Fall 2017, Number I. The title of his article was, "Trial Lawyers, Plumbers, and Electricians: Should They All Be Certified?"

 

Tom reminds us that... "Four decades ago, Supreme Court Chief Justice Warren Burger made the point that for centuries, society has imposed standards on 'certain human activities [affecting] large numbers of people.' Examples included occupations like teachers, doctors and, in more modern times, electricians, plumbers, and other trades. A glaring omission from those occupations, the Chief Justice pointed out, was trial lawyers. Those engaged in protecting and vindicating rights in civil and criminal courtrooms were neither tested nor licensed beyond the passing score on a general knowledge bar examination. Burger explained: '[W]e are more casual about qualifying the people we allow to act as advocates in the courtrooms than we are about licensing our electricians."

 

In light of this obvious "cry to arms", we must really ask each other, how far have we progressed?  I certainly recommend each of you obtain a copy of Tom's well thought out law review article, but I also challenge you to do more. Get involved! Join a subcommittee of ABPLA.  Come to our annual conference in New York this May. Help your community understand how important board certification is. Raise the bar, and help your trial lawyer brothers and sisters.

 

I challenge each of you, as you are reading this, to immediately calendar our conference. It will be held from May 2 -4, 2019, at the Park Lane Hotel in New York City. (I know, springtime in New York is horrible, isn't it?).

 

Our National Legal and Medical Malpractice Conference is a unique three day CLE for both plaintiff and defense attorneys. It is a must attend event for those who truly wish to perfect their practice and connect with those who are setting the standards in our highly specialized fields of practice.  We have an all-star faculty that has been assembled, both plaintiff's lawyers, defense lawyers, and physicians, who will truly provide the most exciting CLE imaginable. I look forward to seeing all of you in New York!

 

I close this month's address, as I began, with reference to Tom's law review article: "It is... past time for the legal profession to acknowledge the voices from decades past urging the recognition of specialization certification and implementation of true objectively verifiable competence. Now is the time to institute a pre--or post-licensing specialty certification process leading to trained legal specialists reflecting the professionalism that is called for so often but that is lacking after decades of effort. Changing the paradigm will be difficult. But if not now, when?"

 

Randy

 

May 6, 2018

 

As the newest President of the American Board of Professional Liability Attorneys (ABPLA), it is my honor and privilege to follow the extraordinary leadership of those before me, Richard B. Collins, William F. McMurry & William C. Callaham, and Tommy Malone. The dynamic energy, dedication, and guidance of these attorneys, not only expanded ABPLA's Board Certified Specialists and influence, but also positioned the ABPLA to be one of the premier national lawyer organizations accredited by the American Bar Association. The ABPLA is now leading the movement to serve the public by certifying the competency, integrity, and ethics of those lawyers who represent clients in the highly complex cases of medical and legal malpractice law.

The ABPLA is an organization that embraces and promotes the highest standards in the legal profession. It was founded in 1973, in the wake of US Supreme Court Justice Warren E. Burger's observations that our country suffered from a "low state of American trial advocacy and a consequent diminution in the quality of our entire system of justice". Chief Justice Burger believed that the creation of a system to certify trial advocates in specialties was an "imperative long overdue step," that would ultimately determine "the quality of our justice." of trial advocates in specialties was "imperative and". The ABPLA met this challenge and continues to serve our justice system through its certification of legal specialties in two of the most complex areas of l the legal profession: medical and legal malpractice.

Since the ABPLA was first organized, professional negligence law has become increasingly complex, requiring lawyers to become specialists in the nuances of legal or medical negligence in order to serve their clients competently and effectively. In such an environment, the need is ever greater to provide consumers with an objective standard by which to assess professional negligence attorneys. Board certification provides such a benchmark.

It is the ABPLA's continuing mission to certify attorneys according to the highest standards of experience, ethics, education, examination and excellence. Through the rigorous certification process, the ABPLA offers the consumers of legal services a clear standard of excellence for selecting medical and legal malpractice attorneys in whom they can have confidence. It is our goal to identify and certify exceptional professional attorneys in every state, and to make available to prospective clients the names of those board-certified attorneys.

For attorneys specializing in professional negligence liability, the ABPLA serves as a unifying voice, to raise our visibility as leaders to our fellow attorneys, and prospective clients in need of assistance.  

As President, my continued goal will be to increase public awareness of the importance of selecting a board-certified attorney as well as to seek out the most experienced and competent attorneys to achieve board certification in professional and legal negligence matters.

I hope that each of you will join me in order to continue the strong heritage of our organization and its' noble purpose. I look forward to serving you as president. If there is anything I can do to personally assist you, please let me know.

Yours very truly,

'RHS'

Randall H. Scarlett
Scarlett Law Group
536 Pacific Avenue
San Francisco, Ca.  94133
800-262-7576
www.scarlettlawgroup.com
[email protected]
 
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