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Donald Davidson — known as a lawyer who abides by the rules — has suddenly found himself the poster boy for stonewalling by defense lawyers. Videotaped remarks Davidson made at a New Jersey Institute for Continuing Legal Education seminar in March — in which he advocated a “just say no” approach to discovery in nursing home litigation cases — are being disseminated around the country. A plaintiffs lawyer in Minnesota is using Davidson’s comments — in frequent lectures for the Association of Trial Lawyers of America in Colorado, Minnesota and Florida — as an example of obstructive defense tactics. The remarks even found their way into a discovery dispute involving another lawyer at Davidson’s New Brunswick, N.J., firm, Hoagland, Longo, Moran, Dunst & Doukas. A plaintiffs lawyer who attended the ICLE seminar raised them to a judge, saying they signaled the firm’s philosophy. Davidson is clearly nonplussed by all the negative fanfare. “I was simply advocating an aggressive approach to document production,” he says. “If I knew the maelstrom that this would have created, I obviously would have temporized my comments. I probably was overenthusiastic and said things in a more candid, straightforward way than I should.” In the video, obtained by the New Jersey Law Journal, Davidson confides that he usually discusses such strategies at defense-only events like those of the Defense Research Institute. Speaking off the cuff, he warned about outsized verdicts against nursing homes in other states and told how plaintiffs lawyers in those cases use nursing home reports and memos to paint an unflattering picture of the defendant institution. As such, Davidson said he advises his fellow defense attorneys that wherever possible, they should resist turning over documents in discovery. “I can’t tell you how much I would encourage you defense attorneys to not give over any documents willingly other than the [patient's medical] chart,” Davidson said, drawing hearty laughter from the audience. “People give over stuff not realizing it. I mean, we try to fight everything — incident reports, surveys, anything, logs,” he said. “Because we find that 50 percent of the time plaintiffs’ attorneys ask for something, we give them an excuse why we can’t give it to them, because it’s privileged or this or that, they never make a motion and they never get it.” “Because it’s the compilation, the compilation of the problems, the compilation of the abuses … they’re the ones that set the scene for these hits in these cases in these other jurisdictions. So you have to streamline. Deny documents,” Davidson said. Claim that the documents sought are privileged, he said, and there’s a good chance your adversary won’t bother to make a motion seeking them. TRYING TO KEEP THINGS LIVELY Davidson says he tried to make his talk entertaining, since the conference was on a “long, rainy Saturday morning” and he was the only defense lawyer on the nine-member panel. “It might not have come out that way, but my point was [that defense lawyers should] not roll over. I was trying to pump up the few defense attorneys in the audience and give them something in the day’s lectures they could use,” says Davidson, who has not seen a replay. Those who know Davidson say his remarks at the seminar do not reflect the way he practices. Another panelist at the event, plaintiffs lawyer David Cohen of Stark & Stark in Lawrenceville, N.J., says he has faced Davidson in court many times and discovery issues have always been resolved without motion practice. “I’m not sure what was in his mind when he spoke. There are members of the defense bar who do conduct themselves like that. I suppose the irony is Don is a class act,” says Cohen. Davidson is an “ethical, vigorous adversary,” says Raymond Gill Jr., another plaintiffs lawyer who has faced him many times. “I’ve never had a situation where he asserted a privilege that isn’t a privilege. Quite honestly, I’m surprised he made these comments,” says Gill of Gill & Chamas in Woodbridge, N.J. The Defense Research Institute was quick to say that Davidson and his comments did not represent the group’s philosophy. The DRI said Davidson has never been a speaker at any of its events and he let his membership in the group lapse in 2002. John Kouris, DRI’s executive director, says Davidson was “not espousing any statement that is condoned by our organization” and “not reciting a practice that is taught by DRI.” Kouris says DRI goes to great lengths to ensure that content of its seminars, course materials and publications complies with the American Bar Association’s Code of Ethics and codes of attorney conduct in all states. Thomas Hight, immediate past president of the New Jersey Defense Association, says plaintiffs lawyers sometimes make unreasonable or overbroad document requests, but he did not think many defense lawyers adopt the strategy outlined by Davidson. “If it’s being done it’s a terrible thing. There are lots of cases that can rise and fall on document production. Is that an excuse for you to hide documents or bury documents or not produce documents? No, it’s not,” says Hight. CLIP OUT OF CONTEXT Behind the notoriety is Mark Kosieradzki, a Minnetonka, Minn., lawyer who keeps an active schedule of speaking engagements, some under the ATLA banner. Kosieradzki, chairman of ATLA’s nursing home litigation group, says he included Davidson’s remarks because they illustrate a general rise in defense counsel stonewalling. “Defense lawyers are becoming more and more obstructive in defense of information,” he says. “Lawsuits are supposed to be about sharing of information. Our job is not to obstruct the truth but to make sure such information is given fairly,” says Kosieradzki. But the segment shown around the country is 1 minute and 20 seconds long, while Davidson’s speech went for 29 minutes. In the remarks edited out of Kosieradzki’s clip, Davidson described cost pressures facing nursing homes from low government reimbursement and high-liability insurance premiums. Davidson said jurors are often inclined to have negative views of nursing homes. He said defense counsel must resist plaintiffs’ attempts to bring in testimony on topics peripheral to the injury or other event that prompted the suit. Davidson also advised defense counsel that any unnamed party that may have had a role in the injury, like a hospital or doctor, should be named as a third-party defendant. Seminar moderator Thomas Vesper, who moderated the seminar at which Davidson spoke, says he has a difference of philosophy with Davidson about discovery. But he adds, “I do not want to criticize Mr. Davidson for his candor and I do not want to criticize another ICLE speaker for his philosophy of defending cases. I think he said publicly what a lot of defense lawyers will not admit publicly,” says Vesper, a plaintiffs lawyer at Westmoreland, Vesper, Schwartz & Quattrone in West Atlantic City, N.J. ICLE sells an audio recording of the seminar but videotapes of such seminars are not for sale, says Lawrence Maron, the executive director. Sometimes ICLE gives parties permission to use its videotapes but only after securing permission of speakers. Maron says ICLE did not sanction Kosieradzki’s use of its videotape and he would investigate how it got into the out-of-state lawyer’s hands.

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