Monitoring legislation that would include asbestos trusts as active defendants on verdict sheets and highlighting that 2013 is a judicial election year are two of the top agenda items for the Philadelphia Association of Defense Counsel, its new 2013-14 president said.
Wesley Payne IV, a partner at White and Williams, said that even many lawyers are not aware of local judicial elections.
While Payne does not see a role for the PADC in vetting judicial candidates, he does want to emphasize to the organization's members that it is important to pay attention to judicial elections because of the judiciary's role in adjudicating disputes.
Payne said he would bet that not more than a handful of the 225 attorneys at his firm would know who is running for the court of common pleas at any one time.
"Unless someone contacts you for a donation, then you have no clue," Payne said.
The defense lawyer wants to highlight to members judges who are doing their jobs, but Payne said that does not mean those jurists who agree with his perspective on cases.
Payne said he does not expect that a judge who was a plaintiffs attorney for 30 years would see the case the way he does, but "as long as I get a fair shot, then they're OK with me."
In terms of the asbestos legislation, Payne said he expects the PADC to track it closely.
But Payne also said he hopes all the possible effects are considered in the legislation because sometimes changes may result in unintended complications. Further, trusts are individual cases themselves, he said.
Payne, who has been an attorney for 25 years, has been with White and Williams for 12 years. Prior to that, he worked for an insurance carrier on asbestos, workers' compensation, general liability and subrogation types of cases.
One never knows what is going to pop up from the General Assembly, so all the key legislative issues for 2013-14 cannot be predicted, Payne said.
Payne also runs the organization that works up the joint defense medical experts in Philadelphia asbestos cases.
Payne was involved in the defense community's push last year to change state venue rules through legislation, but that, he said, is now dead.
Venue has traditionally been zealously guarded by the Pennsylvania Supreme Court, Payne said.
"A lot of the changes we were going to propose through that legislation are things that should have come down through the court," Payne said. "But there were other people sitting around the table who thought it was fine."
Changes to joint and several liability are not going to see results for another year or more, Payne said, and he is anxious to see what they are.
"You change something, you don't know what all the results can be," and the statute will be tweaked by judicial interpretation, Payne said.
phila. asbestos practice
In Philadelphia, Payne was one of the defense attorneys involved in helping to form the new rules, including discovery rules, for asbestos cases, after Philadelphia Court of Common Pleas Judge John W. Herron, administrative judge of the trial division, sought to change the rules governing mass tort cases.
The 2012 rules realigned the court "with what was really going on in the practice," Payne said.
One example was that the defendants in asbestos cases have changed, Payne said.
The first-generation defendants were the producers of asbestos, then it was defendants involved with larger amounts of insulation involving asbestos, then it was other types of products involving asbestos, and the fourth-generation defendants are now usually smaller entities like manufacturers of speciality products, Payne said.
Twenty years ago, every case down at the Philadelphia Naval Shipyard would involve Owens-Corning Fiberglass, a major supplier of asbestos, Payne said, and the discovery would be same for case after case.
"Currently, when you have specialty-type defendants, they're not going to be in as many cases. The routine cannot be the same," Payne said. "I remember once you did the site inspection at the shipyard that would be good for thousands of cases."
Another change in the practice that was not reflected in court rules was more plaintiff firms from around the country filing asbestos cases, Payne said. Twenty years ago, there were four plaintiff firms and issues could easily be addressed with them, he said. Then it became "impossible to get them all together at the call of the list," Payne said.
The presence of out-of-state firms has diminished, and the court did a "nice job of getting that done," Payne said.
Payne has been hearing for his 25 years of practice that asbestos cases were going to dry up, but he said the litigation will stay active for at least another 15 years.
Payne said he has been involved with the PADC for many years because "it literally covers my entire practice. The issues that pop up in Philadelphia County pop up there."
For example, when the asbestos litigation rule changes came up, the judges were reaching out to the PADC and it was a direct conduit to get information, Payne said.
When Payne is not working on his practice or doing something involving the PADC, he does pro bono work or is involved with the Philadelphia Bar Association as this year's current treasurer or the Philadelphia Diversity Law Group as co-chair.
The recession of 2008 hurt a lot of firms in their efforts to advance diversity in the legal profession, including firms cutting diversity officers whose total job duties revolved around pressing the issue of diversity within their employers, Payne said.
But Philadelphia's progress on diversity in the bar is improving along with economic growth, Payne said, because the hiring of diverse summer associates is springing back.
Payne also said the PADC wants to increase diversity among its members.
A Family That Road-Trips Together
Payne's main area of practice is now in Philadelphia, but he used to be a road litigation warrior. One year, he was on the road for 256 of 365 days, he said.
That makes for a "great cocktail story but a lousy life," Payne said.
As a member of the Judge Advocate General's Corps, Payne was stationed in Korea for one year. When he was going to be sent to Panama for an 18-month tour without his family, he decided not to re-enlist. He reasoned that being away for two-and-a-half years of the four-and-a-half years he had then been married to his wife, San Lewis-Payne, was not a marriage. Lewis-Payne has a law degree and a master's in social work.
Payne and his wife, who were stationed at Fort Dix, N.J., decided to settle in Philadelphia because they really loved the city, said Payne, who is a native of Baltimore.
Now when Payne travels, he only travels where his family wants to travel. This month, his wife wanted to tour her home state of Indiana with their two teenaged fraternal twins and their college-aged daughter, who is going to study social work like her mom.
Payne's twin son lives for football and doing just well enough in school to keep playing football, while Payne's twin daughter lives for "reading, and then there's reading and reading," he said.
So while Payne's traveling days are behind him, all five members of the Payne clan hit the road to the Midwest this month.