Post by Neal S. Krokosky
A critical attribute of a successful attorney is a desire to innovate for the future. Rather than merely using the same strategy time-and-again, an attorney should ask: can I do this better? My interest in answering this question led me to write: Putting the Product in “Products Liability”: Pleading Product Identification in a Federal Toxic Tort Lawsuit, which was recently published in the American Journal of Trial Advocacy.
After several years defending asbestos claims, I started to question why defendants did not seek dismissal when a plaintiff failed to specifically identify the allegedly injurious product in the complaint. My suspicion was (and is) that most defense attorneys believe that a motion to dismiss for lack of product identification would be futile.
Dissatisfied with continuing to sit idly by, I began researching the issue in my spare time. My research revealed that the case law supports the opposite conclusion; a court typically will either dismiss the claim or require the plaintiff to provide additional details regarding it.
By taking an intellectual curiosity, which arose from a recurring issue in my practice, and converting it to a meaningful research project, I developed an innovative (if admittedly basic) defense strategy that I know can significantly reduce litigation costs and potential liability.
For attorneys, the takeaway is this: it is important to get into the dialogue by reading, writing, and sharing. Clients, on the other hand, should attempt to seek out attorneys whose practice philosophy reflects thoughtfulness about how to efficiently and effectively achieve the results you seek. While there is nothing wrong with an attorney using a proven strategy, it is important that he continue refining it based on new ideas and developments in the law.