Last Chance to take Survey: What Keeps You Up at Night?

Running a trial practice is hard enough, and personal injury attorneys can feel unsettled about running their law practices.

Concerns like “My firm’s case load is declining,” or “I spend too much time working and don’t get enough free time,” or “Tort reform and damage caps are hurting my practice” sometimes preys on attorneys’ minds.

Tell us what keeps you up at night in this one-minute survey sponsored by Law Tigers.

Take the survey at

Often the answer is for an attorney to find a new niche within a personal injury law practice. Tell us if you think satisfaction can be found in a mass torts, environmental, motorcycle accident, criminal/DUI or another niche.

The survey asks a few demographic questions so that we can sort the answers to get interesting results. Then stay tuned — we’ll publish the results right here on The National Trial Lawyers website.

Law Tigers is a professional association of motorcycle injury lawyers who help riders every day. The association consists of member law firms in various states with skilled personal injury lawyers whose mission is to support and promote the well being of motorcyclists. Dedicated to rider safety, awareness, and education, we are committed to the riding community. For more information please contact Jake Kulp at

New Research Sees Astonishing Drop In Win Rates for Federal Plaintiffs

A new study reports that for 10 years starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70 percent to 35 percent.

It remained at a 35 percent win rate for the next 15 years. University of Connecticut law professors Alexandra Lahav and Peter Siegelman say they can’t point to a single reason for the “astonishing” drop in success rates, Reuters reports.

“A significant puzzle remains unsolved,” they write in the draft study.  “We explore, and largely reject, several possible explanations for this surprising finding. Although the reason for the falling win rate remains a mystery, we conclude that courts may need to justify decisions not only in individual cases, but at a systemic level.”

Mass torts are 36% of entire federal civil docket

Interestingly, so many attorneys are starting mass torts practices that the litigation now makes up 36 percent of the entire federal civil docket — up from 16 percent in 2002. No longer the domain of large, national trial law firms, a mass tort practice is an opportunity for any size law firm, according to LawLytics.

The professors say that another obvious explanation for the decline in the win rate is that the mix of adjudicated cases might have shifted away from those that plaintiffs usually win (e.g., student loan) towards those in which plaintiffs rarely prevail (e.g., prisoner or civil rights). Similarly, perhaps the case mix shifted towards circuits where plaintiffs do less well. Or perhaps there are more pro se plaintiffs as a share of total cases, who have always fared less well than those who are represented by counsel.

It’s possible that judicial attitudes toward plaintiffs are changing, the professors told Reuters, but they would need additional data to test the theory. The federal courts don’t release case outcomes for particular judges, information that would be helpful for researchers.

Build your empire Februrary 4-7 in Miami South Beach


The Trial Lawyers Summit is the annual gathering of civil plaintiff and criminal defense attorneys created by The National Trial Lawyers to bring together members. Over a thousand attendees gather at the spectacular Loews Hotel in Miami South Beach to share ideas, to learn new ways of improving skills in the courtroom, and to evaluate new tools and methods for managing and marketing their law firms.



  • An AMAZING lineup of over 60 of the nation’s top speakers covering the latest trends, new case types and topics.
  • Earn a year’s worth of CLE credits in 3 days (24+ CLE hours & 2 Live Ethics hours)
  • Get new referrals! Engage with America’s most influential and respected trial lawyers on major projects of interest.
  • Words of Wisdom from The Trial Lawyer Hall of Fame—Gain insight from top trial lawyers in American history.
  • For the 4th year in a row, The Trial Lawyer magazine has rated the Trial Lawyers Summit the #1 Conference of the Year!


Don’t miss your chance to SAVE. Register now.




Law Firms Wake Up To Napping Facilities as a Workplace Solution To Support Sleep

Naps are a cost-effective and efficient solution to allow attorneys who sometimes need to work through the night, to still get some rejuvenating sleep without the expense and time loss of going to a nearby hotel.

By Christopher Lindholst, CEO and Co-founder of MetroNaps

The legal profession is among the most sleep-deprived in the U.S., according to the Centers for Disease Control & Prevention’s National Health Interview Survey, which ranks lawyers second in the sleepless sweepstakes — even doctors get more rest. Seeking a solution, law firms have now joined the ranks of corporate America in providing napping facilities to support their employees.

Sleep deprivation is an issue nationwide: National Sleep Foundation research found that nearly half of Americans don’t get the rest they need and are affected by sleeplessness in their day-to-day activities. Attorneys are particularly affected, as short deadlines often require working late into the night and on weekends.

Napping facilities as a workplace solution first began in Silicon Valley, where tech wizards famously work long hours and offset the stress and fatigue with imaginative perks. But the benefits of napping are grounded in solid science, so the trend transcended industry boundaries. While Google continues to provide napping pods to staff, so does PWC, Procter & Gamble and Marriott.

And now, so does White & Case LLP, the prestigious law firm founded in 1901 with over 30 offices around the world, which installed a wellness room in its Washington DC office. Comprising several recliners and napping pods provided by Restworks, the dedicated room is located on one of several floors housing the office’s many employees.

Cognitive benefits

The choice to support sleep is a good one: a nap as short as six minutes has been proven to have cognitive benefits. Naps improve alertness, productivity and thereby help mitigate errors. There are wellness benefits also, as naps help reduce stress and regular napping improves long-term health: a landmark Harvard study found a 37% reduction in the risk of cardiovascular disease in those who take at least three naps per week.  That’s good news for firms whose attorneys often face high levels of stress and long hours at a desk. A short nap is a simple way to help.

But naps are also a cost-effective and efficient solution to allow attorneys who sometimes need to work through the night, to still get some rejuvenating sleep without the expense and time loss of going to a nearby hotel. Last minute hotel bookings are usually expensive, easily costing hundreds of dollars and can’t always be billed to a client. But perhaps more importantly, attorneys waste precious time traveling to hotels, checking in, getting settled and checking out again. If a more proximate and convenient solution was available, that time could be spent getting some extra sleep… or working for billable hours.

While naps aren’t a replacement for nighttime sleep, they can be used to help when time sensitive situations arise. Law firms that provides napping facilities for employees to recharge results in healthier, more effective attorneys. And that’s good for everyone — including clients.

Beware the Seven Deadly Sins of Attorney Bios

Katherine Hollar Barnard of Firesign addresses the seven deadly sins that you don’t want to make when you post your attorney biography at “Forget flashy advertising, catchy taglines or firm logo Frisbees. The professional biography is the paramount piece in any attorney’s marketing arsenal.” To read the complete article, please click here.

7 Steps for Effective Direct Examination of Expert Witnesses

witness in courtReproduced from The Expert Institute

While the cross examination of a witness is often viewed as a climatic moment in a trial, the direct examination of a witness, particularly an expert, can be of equal, if not greater importance to the outcome of a case. Knowing how to effectively conduct a direct examination of an expert witness can set the tone for the entire trial. The following are seven helpful tips to ensure that your direct examination is a success.

1. Choose an Expert: The Earlier the Better

Once it is decided that an expert witness will testify at trial, finding the most qualified, experienced, and professional expert should be prioritized. By definition, experts are brought into a case because their knowledge and skillset can assist the trier of fact in ways that lay witness testimony cannot. As enumerated in Rule 702 of the Federal Rules of Evidence, experts are to use their “scientific, technical, or other specialized knowledge” to help the trier of fact in understanding the evidence or determining a fact in issue. Expert testimony must also be based on sufficient facts and reliable principles and methods. Because experts are versed in knowledge that is most likely foreign to the jury, it is critical to spend as much time as possible with your expert prior to trial. The crucial trial preparation stage will be less arduous if the expert has already been a part of the litigation team since the inception of the case. A quality direct examination can be just as difficult to craft as a cross examination, so the more time the attorney and expert have to prepare, the more effective the testimony will be.

While it is obviously necessary to hire an expert who possesses the requisite level of expertise in its particular field, it is also important to examine the expert’s demeanor. Oftentimes, juries assess credibility by the witness’ behavioral patterns, expressions, and voice. Therefore, it is important to hire an expert as soon as possible so his presentation can be assessed.

2. Adequately Present the Expert’s Qualifications

Typically, direct examination begins by establishing the expert’s qualifications. The first few questions about the expert’s professional background should demonstrate to the judge that the expert possesses the requisite qualifications to testify while also showing the jury that the expert is capable of rendering accurate opinions. Depending on the practice area, an expert may testify as to formal education, work background, on-the-job training, or other credentials. It is helpful if an expert has both academic and practical experience, as it provides a more well-rounded picture of the expert’s background. While not a necessary tactic, it can be beneficial to humanize the expert on direct examination by asking questions that help the expert appear three-dimensional to the jury. Tying in anecdotes about the expert, or mentioning her hobbies during the introductory questions may increase the chance that the expert will be viewed as someone relatable, and by extension, trustworthy.

3. Use Everyday Language When Explaining Complex Ideas

The main purpose of an expert is to help the jury better understand the facts at issue by explaining technical information in an easily digestible format. To help your expert achieve this goal, the direct examination must comprehensively flush out any complex or confusing testimony. It does not matter whether an expert is the most qualified in her field or if she presents indisputable opinions.

If a jury does not understand the testimony, it will be of little use. Avoid legalese or scientific terminology by substituting those words or phrases with everyday language. When explaining a complex procedure, the expert should analogize each step with something that is easier for non-technical jurors to understand. For example, a medical expert testifying about heart surgery can analogize the unblocking of a clogged artery to the opening of a lane during a traffic jam. The goal is to ensure that the jury fully understands the expert and is able to apply the testimony to their own decisions when rendering a verdict.

4. Elicit Testimony Within the Expert’s Scope

While it can be tempting to question an expert on a broad range of matters, it is important to stay within the constraints of the governing rules of evidence. In federal courts (and state courts that have adopted such evidentiary rules), expert testimony must be both reliable and relevant. Likewise, an expert may base an opinion on facts or data that the expert has been made aware of or personally observed.  An expert need not disclose all facts and data on which the direct testimony relies, but the witness may be questioned about those facts on cross examination. If an expert’s opinion is based on questionable data or unreliable methodology, such weaknesses can be exposed on cross examination. Therefore, the direct examination should be as forthright as possible in order to defend against adversarial surprise attacks.

5. Utilize Demonstrative Evidence to Illustrate the Testimony

Demonstrative evidence, that is, evidence addressed directly to the senses without the intervention of testimony, can be presented in a variety of forms such as photographs, diagrams, models, illustrations, audio recordings, or in-court experiments. Demonstrative evidence impresses a jury’s senses, and thus, provides an additional means of evaluating the facts of the case.  The main purpose of demonstrative aids is to help the jury more fully understand the factual issues while also breaking the monotony of oral testimony. The specific type of demonstrative aid used is dependent upon the particular expert testimony, however incorporating such evidence can benefit both the style and substance of the direct examination.

6. Address Any Credibility Issues Up Front

No direct examination or expert witness is perfect. Addressing any credibility issues at the onset of direct examination can be beneficial in two ways. First, by questioning the expert on any perceived weaknesses, it takes the sting out of the cross examination and precludes opposing counsel from appearing to have “caught” the expert in a lie or misrepresentation. Secondly, it shows the jury that the expert is honest, which in many cases, can bolster the expert’s credibility.

During cross examination, opposing counsel will often ask an expert’s fees, in order to show that the fees are exorbitant in relation to the expert’s work. To preemptively defend against such a point, a direct examination can include a brief line of questioning about the time and effort the expert put into the case. For example, the expert can cite the materials reviewed and experiments conducted and give an estimate of the time expended. In addition, an expert may have put other professional commitments on hold to prepare for the trial.  The goal is to establish the expert as a credible professional who is fairly compensated for his work.

7. Conclude the Testimony By Summarizing the Case Theory

Ideally, the case theory should intertwine with all aspects of the trial. The direct examination may begin with more scientific, complex ideas, but once the expert thoroughly explains and breaks down his opinions, the testimony should ultimately mirror the attorney’s case theory as told in an opening statement or summation. Experts should be able to reiterate the case theory, while also maintaining their own voice. If a direct examination is successful in helping the jury understand the scientific or technical facts of the case, then the jury should be able to apply those facts when deciding the ultimate issue. By summarizing the testimony at the conclusion of the direct examination, the expert is showing the jury a new point of view while still emphasizing the theory of the case.

Recording and Slides: Using Focus Groups to Win Million Dollar Cases

Click below to play the recording of

NTL Webinar: Using Focus Groups to Win a Million Dollar Case


Click to advance the slides.

Katherine Cardenas

Katherine Cárdenas is a partner with Lucas & Cárdenas in Chicago. This program was originally presented on Nov. 30, 2016.

There comes a time in the practice of every plaintiff’s trial lawyer when a client arrives with a million-dollar case. Even though the damages are high and the liability is clear, a lot can go wrong between the selection of a jury and the closing argument.

  • Your client may be deserving — but not be a sympathetic claimant to the jury.
  • Jurors may have hidden prejudices that you are reluctant to inquire into.
  • The defense may have a bogus case, but it may be persuasive to the jury.

When a case is worth millions, smart attorneys invest in presenting their case to a focus group. Frequently used to test out a new product, a political campaign or a television series, a focus group is a demographically diverse group of people assembled to participate in a guided discussion about a particular product before it is launched, or to provide ongoing feedback on a pending lawsuit.
image1This was the situation that faced Katherine Cárdenas, a partner with Lucas & Cárdenas in Chicago. She has more than 20 years of experience representing adults and minors in every area of personal injury.

After she tested her personal injury case before several panels of ordinary people, she discovered unspoken toxic prejudices in the jury, how the jury viewed her client, and how effective her expert witnesses were.

She adapted her case, changed her opening argument and obtained a significant settlement eight days into the trial, before her client even took the stand.

What you will discover:

  • The elements of a focus group.
  • The preparation required.
  • The presentation of the case.
  • What she learned about being an advocate.
  • Why you should conduct a focus group on your big cases.
  • Costs.

About Katherine Cardenas

Ms. Cárdenas has more than 20 years of experience representing adults and minors who have suffered debilitating injuries in every area of personal injury. She prides herself on tenaciously representing her clients from day one to the very end.

She is a member of the highly esteemed Multi-Million Dollar Advocates Forum due to her repeated success in winning multi-million dollar settlements for her clients. In 2012 was recognized by The National Trial Lawyers as one of the Top 100 Trial Lawyers.

She is an Indiana University graduate and obtained her law degree from Loyola University School of Law Chicago. Ms. Cárdenas has tried numerous cases in Cook County, Will County, and Lake County, Illinois. She has represented clients in Federal Court and has argued before the Supreme Court of Illinois. Ms. Cárdenas is a member of the Illinois State Bar Association, the American Association for Justice and the Illinois Trial Lawyers Association.

Ms. Cárdenas has tried numerous cases in Cook County, Will County, and Lake County, Illinois. She has represented clients in Federal Court and has argued before the Supreme Court of Illinois. Ms. Cárdenas is a member of the Illinois State Bar Association, the American Association for Justice and the Illinois Trial Lawyers Association.

As U.S. Chamber of Commerce Denounces Lawsuits, It Goes to Court Every Other Day

publiccitizen-logoAlthough the U.S. Chamber of Commerce regularly denounces the “costly” American legal system and the number of lawsuits filed, the Chamber itself is a prodigious litigator, a new report (PDF) from Public Citizen’s U.S. Chamber Watch shows.

The Chamber files a court case or amicus brief roughly every other day of the five-day work week, according to the report (PDF), “Chamber of Litigation.” And despite its claim to represent small businesses, only 7 percent of the cases have been in favor of small business.

The Chamber went to court to argue:

  • That fines against BP for the Deepwater Horizon explosion should be reduced
  • To block a class-action suit against BP by small businesses
  • To contend that a Buckeyball magnetic toy owner shouldn’t be liable for a recall despite ignoring ample warnings
  • To support Maurice Greenberg, the disgraced former CEO of AIG
  • To argue that former students shouldn’t be allowed to sue Corinthian Colleges for fraud
  • To block a federal effort to reduce greenhouse gases that cause climate change.

A serial litigator

“It turns out that the leading propagator of the litigation crisis lie is itself a serial litigator – on behalf of the world’s largest corporations and against the interests of consumers, the environment, workers and even small business,” said Robert Weissman, president of Public Citizen.

The Chamber is well-known as the nation’s largest lobbyist and as one of the largest dark money outside spenders on elections. Today [Oct. 26], the Chamber’s Institute for Legal Reform will gather hundreds of members at its annual Legal Reform Summit, featuring former Massachusetts Gov. Mitt Romney as the keynote speaker, to explore what it considers to be the perils of over-litigation.

Chamber Watch analyzed about 500 cases over a roughly three-year period in which the U.S. Chamber Litigation Center – a Chamber affiliate – was either a plaintiff or an amicus. Chamber Watch found that:

  • In the past 10 years, the Chamber has been involved in more than 1,100 lawsuits.
  • The Chamber’s legal filings supported at least one Fortune 500 company almost 60 percent of the time, but supported a small business only 7 percent of the time.
  • The Chamber filed a brief in support of foreign multinationals (57 times) almost twice as often as it did on behalf of domestic small businesses (29 times).
  • The No. 1 legal issue addressed by the Chamber was restricting consumer and small business access to the courts. The second and third were employment and labor relations issues and environmental issues, respectively.
  • The government agency that the Chamber most frequently opposed was the U.S. Environmental Protection Agency (EPA). In 15 cases against the EPA, the Chamber was the plaintiff. It filed amicus briefs in cases against the EPA 11 times.
  • Ford was the company most frequently directly assisted by the Chamber. State Farm and Dow tied for second. ExxonMobil was third. Koch Industries and Bank of America tied for fourth.

“By looking at the Chamber’s widespread use of litigation on behalf of the nation’s biggest corporations, it quickly becomes apparent that the Chamber is not a voice for the vast majority of American main street businesses, but rather a force to defend the interests of Big Business,” said Lisa Gilbert, director of Public Citizen’s Congress Watch division.

Added Dan Dudis, director of Public Citizen’s U.S. Chamber Watch program and author of the report, “Whether it’s suing to block environmental policies or standing in the way of worker and consumer rights, the Chamber uses litigation as a weapon against progressive reforms. The nature and frequency of the Chamber’s litigation that is highlighted in this report reveals the true face of the Chamber. Despite claiming to represent small businesses and condemning civil lawsuits, the Chamber wields litigation as a force on behalf of Big Business.”

Snapchat as Evidence

A Georgia Teen faces felony charge after an alleged Snapchat 'speed filter' crash that severely injured the other driver.

A Georgia Teen faces felony charge after an alleged Snapchat ‘speed filter’ crash that severely injured the other driver. This material is reproduced from the CEBblog™, Snapchat as Evidence, copyright 2016 by the Regents of the University of California.Reproduced with permission of Continuing Education of the Bar -California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site,

Several years ago we told you to consider Facebook postings as evidence in legal cases. This is still true, but now there are many more social media platforms to consider. Snapchat in particular has become a fertile source of evidence not to be overlooked.

Snapchat is a photo- and video-messaging app that’s different from other apps in that all photo and video messages on Snapchat (referred to as “snaps”) last for only a short amount of time and then disappear.

In his recent post on Technologist, Casey Sullivan explained that because “much of a Snapchat user’s life is captured and transferred through the app, it has become an important source of evidence.”

Indeed, two people were convicted of a sexual assault after they recorded the attack on Snapchat. Jurors were shown screenshots from the Snapchat video during the trial.

High speed car crash

high speed car crashSnapchat’s speed filter, which lets users show how fast they’re going while taking a photo, was used as evidence in a case involving a high speed car crash. Plaintiffs sued both the driver and Snapchat, arguing that the speed filter encourages reckless drivingand can cause crashes. Snapchat’s speed filter also may have played a role a car crash that killed three young women.

And in an extremely macabre instance, a teen posted a Snapchap selfie with a murder victim and it became key evidence against him in his murder trial.

It’s easy to imagine a myriad of cases in which Snapchat can be used as evidence. As Casey Sullivan put it, “[p]ersonal injury lawyers, divorce attorneys, criminal defense attorneys, and more could all benefit from evidence found through Snapchat.”

And the ephemeral nature of pictures on Snapchat isn’t necessarily a problem. Sullivanexplains that some Snapchat evidence is retained when users take screenshots of snaps and “Snapchat itself keeps logs of previous snaps.” But even deleted snaps don’t necessarily disappear; digital forensics experts can still pull them from the phone.

Now that you know to look at Snapchat for evidence, would you be able to get it admitted at trial? To learn how to get social media evidence admitted, including the key hurdle of authentication, turn to CEB’s Effective Introduction of Evidence in California, chap 54.

New Book: Mike Burg’s 40-Year Trial by Fire

Trial By Fire by Mike BurgA good sense of humor has been the lucky charm for Attorney Mike Burg in a career that started from the hardscrabble neighborhoods of Chicago, to the red carpet galas of Hollywood, through courtrooms across the country, and into the Trial Lawyer Hall of Fame this year.

Burg highlights the effectiveness of humor — combined with a fierce determination to champion every case he takes on — in his new autobiography, Trial By Fire, One Man’s Battle of End Corporate Greed and Save Lives. Based in Denver, he has won numerous verdicts for his clients with more than 20 in excess of $1 million.

Who’s nervous?

“Having a sense of humor is part of the joy of life,” he said in an interview about his 40-year career as a lawyer for the underdog. “The road is hard, but the journey is joyous.”

The book recounts a case involving a 2004 gas explosion in a building across the street from the courthouse in Steamboat Springs. So many people were involved that the trial was moved to a makeshift facility in a vacant airport.

“How many of you are nervous?” he asked the potential jurors. They all raised their hands.

“I’m really nervous too. This is my first trial…” he said, as the jurors’ eyes widened. He waited two beats and said, “…in an airport.” He was immediately able to build rapport.

At another trial he asked the jury panel, “How many of you hate lawyers?” It sounds like a risky opening, until Burg added, “If you do hate us, can you at least hate us equally?”

Burg honed his skills early in his career, even working nights in standup comedy where he saw Roseanne Barr get her start.

In the book, readers can applaud him as he recovers $6.4 million in the explosion case. You can root for him as he fights for eight years against UBS for knowingly selling risky mortgages to investors. Readers can cheer him on as he leads hundreds of plaintiffs against companies shilling dangerous drugs like Fen-Phen, Yaz, Zyprexa and Pradaxa.

Lawyers will delight as Burg skewers a corrupt executive from Ortho Evra in a deposition. A doctor with a gold-plated resume, he was a director of the birth control patch company who launched his career by faking drug research. For the story, read the book excerpt The Unmasking of Dr. Andrew Friedman.

Mass Torts and the Election

In the book, Burg describes how he got involved in mass torts early, when he connected in 1999 with lawyers from Wyoming, which turned out to be a hotbed of Fen-Phen cases. Many women there had taken the diet drug that caused severe heart valve problems and death. By the following year he had settled more than 450 cases.

Mike Burg is the founding shareholder of Burg Simpson in Denver.

Mike Burg is the founding shareholder of Burg Simpson in Denver.

Today he’s involved in 3 mass torts:

  • Low testosterone replacement. “Unfortunately, this treatment has become a mass tort case. The manufacturers tried to sell testosterone to anyone over 40, when in reality it doesn’t help with sexuality. As your body gets older, your body produces less testosterone naturally. Later in life, testosterone increases risk of heart attack and stroke. It’s a crazy deal,” he says.
  • Depakote. Abbott Laboratories sold the drug to treat seizures and migraines, but some women who took it while pregnant had babies born with severe birth defects. The company paid $1.6 billion to settle federal charges that it promoted off-label uses of the drug and for paying kickbacks to prescribers to drive sales. Plaintiffs have filed 800 cases in the U.S. District Court for the Southern District of Illinois.
  • Talcum powder. Jurors in St. Louis hit Johnson & Johnson with $55 million and $72 million verdicts in two trials charging that the company knew that its talc-based Baby Powder and Shower to Shower Powder causes ovarian cancer. “We are gathering an inventory of these cases,” he said.

Burg sees four threats to consumers as big pharmaceutical companies market defective medical devices and drugs to an unwitting public. “We need good drug companies that are interested in helping the public,” he says, “as opposed to making a billion-dollar profit.”

  • Undue influence. “Drug companies have too much influence over the FDA and Congress,” he says. “Unfortunately, the way that elections work after the Citizens United ruling, corporations have unlimited funding. There are multi-billion dollar companies that can finance a political campaign. This is the biggest problem.”
  • Revolving door. “People go from pharmaceutical companies to the FDA, and from the FDA to the pharma companies. This is a bad recipe,” Burg says. “Many times people will leave the drug companies and be their messenger to the FDA. The FDA does not have enough resources, so they have to rely on the company submissions, the new drug applications and data about adverse events, which is under-reported.”
  • Immunity for generics. “You cannot sue generic drug makers after the Mensing decision,” he said, referring to Pliva, Inc. v. Mensing, 131 S.Ct. 2567 (2011), where the US Supreme Court shielded generic drug manufacturers from state-law damages liability for design-defect claims. “Yet we have managed care that requires us to use generic drugs,” he said. “Quite frankly, they’re not the biological equivalent. They’re being made in India and China.”
  • Preemption. The US Supreme Court followed up in Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466, 2471 (2013) that federal law preempts a state-law design-defect claim against generic drug manufacturers. “This means we can get a recovery for a person who took the name brand drug, and we have a second person who took the generic version and have to say, ‘There’s nothing we can do for you.’ We cannot sue.”

“That’s why this election is so important. We have to get rid of Citizens United and immunity for generic drugs,” he said. “We’re looking forward to Hillary Clinton winning, and having judges that set an even playing field. We’re seeing a lot of mass torts being stripped away by judges, Dauberting out the experts and then throwing the cases out because there are no experts.

In the book, Burg regales readers with representing everyone from the Little Rascals to Ralph Tamm in the first NFL steroid case. Along the way he’s gone golfing with Michael Jordan, attended George W. Bush’s inauguration with the President’s father, and went to a Hollywood party where Nicole Kidman flirted with him.

“I’ve had a hell of a journey,” Burg says. “One of the messages of the book is, this is a journey. I talk to some lawyers who see law practice as drudgery. I’m like, you know what? We got a note from an elderly couple who thanked me, read my book, knowing I’m in the hall of fame, and wondered why I took their small auto accident rear end case. They read the book and they said, “You did it to help people.’ That makes me come to work every day. I’m not just interested in the big mass tort cases. I want to help the average person with a slip and fall case.”

Trial by Fire: One Man’s Battle to End Corporate Greed and Save Lives by attorney Mike Burg is available on