Today's General Counsel, January 2023

By Jeffrey A. Margolis

By Todd A. Presnell

EDITOR’S DESK

Acorporate employee with a visa problem isn’t likely to be camping in the cold, waiting for a chance to wade across the river. Nevertheless, they can run into serious problems and so can their employers. In this issue of Today’s General Counsel, immigration attorney Jeffrey A. Margolis presents an overview of the visa issues that in-house counsel might encounter in his area of law. He says immigration is second only to tax law in its byzantine complexity. Timothy A. Pratt, former General Counsel at Boston Scientific, discusses challenges to scientific testimony in intellectual property and other litigation, and the trial courts’ reluctance to uphold their responsibility as gatekeepers. Last June, the Judicial Conference’s Committee on Rules of Practice and Procedure approved an amendment to Rule 702 that clarifies standards of admissibility, but federal courts are applying it inconsistently, which brings costly appeals and protracted litigation.

Nicole Clark outlines the advantages of legal analytics when protracted litigation is unavoidable, and Todd Presnell writes about a rarity, a case before the U.S. Supreme Court that deals directly with the question of privilege between in-house counsel and their clients. The issue here is the standard by which courts should assess whether the privilege protects dual-purpose communications from discovery.

Bob Nienhouse, Editor-In-Chief bnienhouse@TodaysGC.com

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Nicole Clark

Jeffrey A. Margolis

Timothy A. Pratt

Todd Presnell

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Today’s General Counsel (ISSN 2326-5000)

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CONTRIBUTING

COMPLIANCE

What In-House Counsel Should Know About Immigration Law

By JEFFREY A. MARGOLIS

From time to time, in-house counsel must wrangle with a visa issue, whether how to continue to legally employ a talented U.S. university graduate whose practical training work permit is expiring, bringing over a manager from a foreign corporate subsidiary, even preparing for an I-9 audit. It’s an area of law full of land mines for the uninitiated, and often thought of as second only to tax law in its byzantine complexity and proliferation of acronyms.

What follows is an overview of U.S. immigration law with an emphasis

on business visas of one stripe or another and a link to a more comprehensive outline.

VISAS

Some legal landmarks: On March 26, 1790, the Naturalization Act established that only free whites were eligible for citizenship after a residency requirement of two years. This was the first federal law; immigration was previously under the control of the individual states.

(Very) fast forward: Our immigration system is currently codified in the Immigration and Nationality Act of

1952. Significantly, November 6, 1986, marks the passage of the Reaganinitiated Immigration Reform and Control Act (IRCA) — our first laws imposing employer sanctions, criminalizing the act of knowingly hiring an undocumented worker, coupled with an amnesty program for undocumented aliens. To avoid sanctions, all employers are required to verify identity and employment authorization. Thus was born the ubiquitous I-9 form.

FIVE MAJOR VISA CATEGORIES

1. Non-Immigrant visas (temporary visitors, e.g., work, student, visitor)

2. Immigrant visas (lawful permanent residents, i.e., “green card” holders)

3. Asylees and other special groups (refugees, temporary protected status, DACA, etc.)

4. U.S. citizens (born here or naturalized)

5. Undocumented (illegal immigrants)

The general rule as to entry by foreign persons from the immigration law perspective is that every foreign person seeking to enter the United States of America is presumed to be an intending immigrant, and the burden of proof to establish otherwise (visitor, student, temporary worker) is on the applicant. The question of non-immigrant intent

often defines a successful entry or a refusal.

AVAILABLE VISAS

• Non-immigrant (temporary employment and residency)

• Immigrant (permanent employment and residency)

The key question to ask when determining visa strategy is what is the purpose of the entry? Examples are family re-unification, temporary work assignments, permanent jobs

current quota of 85,000 H1-B visas is now selected by random lottery. As to L-1A, the employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years, and the overseas company must be related to the U.S. company in a specific manner (e.g., same company, subsidiary or affiliate).

Immigrant Employment-Based (EB) Green Cards. Each year 140,000 persons are permitted to become green card holders through the following EB preference categories:

• EB-1-1: Persons of Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics

• EB-1-2: Outstanding Professors and Researchers

• EB-1-3: Multinational Executives and Managers

U.S. workers who are able, willing, qualified and immediately available at the place of proposed employment. Certification also provides that employment of the alien seeking certification will not adversely affect the wages and working conditions of U.S. workers similarly employed.

Green Card through Capital Investment (EB-5). This requires an investment in a new commercial enterprise with minimum investments ranging from $800,000 to $1.8 million, depending on factors such as the area where investment is located (high unemployment, rural) and investment vehicle (direct investment or pooling into a so-called regional center). Ten American jobs must be created for each EB-5 application.

LOOKING FOR MORE?

based on labor skills and tested labor market, and, lastly, capital investment. Primary criteria include family relations, education, nature of proposed employment and employment history.

SOME IMPORTANT BUSINESS CATEGORIES

Non-Immigrant Business Visitor. Entry without a visa (so-called visa waiver) is available to nationals of 40 countries. A classic case is the B-1 business visitor who enters to attend business meetings, receives no U.S. compensation and is not work-authorized.

Non-Immigrant Temporary Employment. Two classic categories are an H-1B petition for a professional level worker and an L-1A petition for an intercompany transferee as executive or manager. Note: The

• EB-2: Members of the Professions Holding Advanced Degrees or People with Exceptional Ability

• EB-3: Skilled Workers, Professionals and Other Workers

• EB-4: Special Immigrants – Religious Workers

• EB-5: Investor Employment Creation Visa

LABOR CERTIFICATION FOR GREEN CARD FILING

Immigrant Employment (EB 1, EB-2 and EB-3). The focus of green card filing is on the so-called Labor Certification process or PERM. The organization must demonstrate good faith efforts to recruit qualified American workers (print ads, job websites, etc.); must obtain a Labor Department certification as condition precedent to filing for green card; and must show that there are an insufficient number of

A comprehensive outline is available at this link. We also recommend www.uscis.gov, which is now quite robust, and our specialized bar association website, www.aila.org

Jeff Margolis counsels major law firms, information technology companies, foreign investors, start-ups and Fortune 100 multinational corporations with respect to immigration and consular law. He frequently lectures before bar and trade groups, writes articles and has been an active member of the Association of Immigration and Nationality Lawyers. jamargolis@ margolislawfirm.com

Each year 140,000 persons are permitted to become green card holders through employment-based preference categories.

INTELLECTUAL PROPERTY

Let’s Fix Rule 702

By TIMOTHY A. PRATT

In the Fall of 2004, I was arguing a case before typically stern Judge Frank Easterbrook in the U.S. Court of Appeals for the Seventh Circuit. I made a reference to the Daubert standard for admissibility of expert testimony, only to be corrected by Judge Easterbrook, who said, “You mean Rule 702, not Daubert.” I was perplexed but charged ahead, only to say Daubert again, and have Judge Easterbrook remind me, “Don’t say Daubert.” I didn’t hold a grudge, but I did wonder: What was Judge Easterbrook’s point?

Now, I get it. Judge Easterbrook was drawing a distinction between

Daubert and subsequent decisions, and the Federal Rule of Evidence that defines the standards for admissibility of expert evidence. Daubert was decided by the Supreme Court in 1993; but in 2000, the Court and Congress approved an amendment to Rule 702 to remedy the puzzlement that Daubert and its progeny had created.

The legal standards for admissibility of expert testimony are set by Rule 702. An alarming number of opinions from trial judges have held that questions relating to the sources of an expert’s opinion affect the weight, not the admissibility of

that testimony. Rule 702 requires the trial court, as the gatekeeper, to determine whether the factual basis of expert testimony is sufficient and whether the expert’s opinion is a product of reliable principles and methods properly applied.

The jury is not the gatekeeper. Misapplication of Rule 702 has occurred in hundreds of cases. According to a Lawyers for Civil Justice (LCJ) study, out of 1,059 Rule 702 opinions in which the trial judge decided to admit, deny or partially admit expert evidence in 2020, LCJ found 882 instances in which the court failed to cite the

preponderance of evidence standard (686 opinions), mistakenly stated Rule 702 has a “liberal thrust favoring admissibility” (135 opinions), or inconsistently cited both the preponderance and “liberal thrust” standard (61 opinions). LCJ’s analysis also demonstrates a discrepancy in citing or failing to cite the preponderance standard in 57 federal judicial districts.

This is not an academic debate. It has real consequences. After years of private practice, I started observing things from the perspective of the client when I became general counsel of a medical device maker. The company was embroiled in mass tort products liability as well as commercial and intellectual property litigation, most of which involved complicated scientific issues. Challenges to scientific testimony became common, and trial courts seem reluctant to uphold their responsibility as gatekeepers for expert testimony, giving that role to jurors instead.

Compounding the problem in federal courts is the inconsistent application of the standard. This was acknowledged by Judge Vince Chhabria, who presides over the consolidated Roundup litigation. Judge Chhabria stated that trial judges in the Ninth Circuit “must account for the fact that a wider range of expert opinions will be admissible in this circuit.” Yet, there is only one Rule 702, regardless of which court is hearing a case. Uniformity is a key reason why Rule 702 exists.

Our civil justice system requires consistency to ensure fairness and avoid forum shopping. When the outcome of dispositive issues depends on where you have filed, confidence in our system suffers.

Rule 1 of the Federal Rules of Civil Procedure incorporates the principle that we should strive for a just, speedy and inexpensive determination of civil matters.

Too much jurisprudence around Rule 702 countermands these goals. Outcomes are unjust if the wrong standard is applied. Failure to exercise the role of 702 results in a delay in the resolution of litigation. When trial courts fail to apply Rule 702 and instead recommend that juries determine the weight to give expert testimony, cases must proceed to

admissibility requirements are met. It is a sound addition and warrants final approval by the U.S. Supreme Court. In the meantime, since the same problems that are motivating the federal amendment exist with state rules (perhaps even more so), many state courts and legislatures will consider similarly amending their expert admissibility rules. Doing so will ensure that state courts have their own appropriate standards for expert evidence, as well as provide important consistency between state and federal systems.

trial and then appeal before there is proper judicial oversight. That determination should be made in the first instance by the trial court so important issues are decided for the benefit of all parties. Delaying these issues and forcing appeals over the course of years can cost parties tens of millions of dollars.

Fortunately, some relief is in sight. In 2020, 50 companies submitted a letter to the Committee on Rules of Practice and Procedure suggesting an amendment to Rule 702 that would clarify the need for courts to serve as gatekeepers for the admissibility of expert testimony. In June, the committee approved an amendment to Rule 702 that makes clear that proponents of expert testimony must prove to the court, by a preponderance of evidence, that the

Can’t we agree that proper science should guide the resolution of litigation? Can’t we agree that a fair rule permitting a party to challenge expert testimony is one that applies equally? Can’t we agree that it is the responsibility of the trial judge to determine the admissibility of evidence, whether that evidence be hearsay, character, documentary, admissions or opinion? And can’t we agree that for the trial judge to exercise that role, we should have clear guidelines? Soon, state courts will undertake some similar “fixes” to their rules for admissibility of expert testimony. Now it is time for the federal courts to set the standard.

Take it from Judge Easterbrook: “Don’t say Daubert.” And take it from the Committee on Rules of Practice and Procedure. “Let’s fix Rule 702.”

Timothy A. Pratt is the former General Counsel and Chief Administrative Officer at Boston Scientific and, before that, was a trial lawyer at Shook, Hardy and Bacon. He has served as president of the Federation of Defense and Corporate Counsel as well as president of Lawyers for Civil Justice. timothypratt.com

In 2020, 50 companies submitted a letter to the Committee on Rules of Practice and Procedure suggesting an amendment to Rule 702.

COLUMN/PRIVILEGE PLACE

Once In a Blue Moon Privilege Ruling

By TODD PRESNELL

The idiom “once in a blue moon” refers to something that happens rarely, of course, and derives from the real-life phenomenon of a second full moon appearing in a calendar month. According to Encyclopedia Britannica, a blue moon occurs about once every 33 months.

U.S. Supreme Court decisions on the corporate attorney/client privilege seem rarer than that, perhaps once every four blue moons.

There are many reasons for that. The Court has shut down parties’ ability to appeal adverse privilege rulings through the collateral order doctrine, and achieving an interlocutory appeal requires approval of the district court and appellate court. And even if one makes it through the appellate maze, the Supreme Court must exercise its discretion to accept it.

But it’s happening. In this 2022–2023 term, the Supreme Court will issue a decision on the corporate

attorney/client privilege that will likely have a significant impact on how in-house lawyers communicate in a privileged manner. The legal issue is the standard by which courts should assess whether the privilege protects dual-purpose communications from discovery: one legal-related and one non-legal, or generally business-related, in In re Grand Jury, No. 21–1397 (U.S.).

The Court may formulate its own standard of course, or do any number of things, but three potential

standards seem to be in contention. First, the “because of” standard, rejected by the lower court, derives from work-product doctrine. When applied in the attorney/client privilege context, the standard protects dual-purpose communications when created because of anticipated litigation, and would not otherwise have

standard arose because the Kellogg court determined that weighing and balancing a communication’s multiple purposes can be difficult, if not impossible. The better rule, according to Kellogg, is for district courts reviewing documents for privilege protection to assess whether a significant purpose, as

been created except for the prospect of litigation. This standard may work well in the work-product arena but seems ill-equipped to govern an in-house lawyer’s communications, many of which have nothing to do with litigation.

Second, “the primary purpose” test is the standard used in some form by the majority of federal and state courts. Under this test, courts examine the putatively privileged communication, sift through and weigh its many purposes, and determine whether the communication’s primary purpose was to give or receive legal advice as opposed to business-related, non-legal advice. This inquiry necessarily means that a multipurpose communication can only have a single primary purpose. And if that purpose isn’t legal advice, then there is no privilege protection.

Third, then-Judge Brett Kavanaugh, in In re Kellogg Brown & Root, Inc. (D.C. Cir. 2014), authored an opinion applying a test that upholds privilege protection when one of the communication’s significant purposes is legal advice related. This

opposed to the primary purpose, of the communication was to provide or obtain legal advice. If so, the privilege shelters the document from discovery.

Whether the Supreme Court adopts the because of, primary purpose, significant purpose or another test, without doubt the privilege blue moon arrives in 2023. It may alter how in-house attorneys communicate with their company’s employees and agents.

Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges. com, and provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com

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In this term, the Supreme Court will issue a decision on the corporate attorney/client privilege that will likely have a significant impact on how in-house lawyers communicate in a privileged manner.

The Eye of the Storm Legal Analytics In Corporate Legal Departments

By NICOLE CLARK

Another hurricane season. It came, and then it left, clearing a path of destruction across the Southern United States. Insurance carriers in these climates have learned to be nimble. The market requires them to proactively manage several forms of risk, utilizing past claims data to predict future loss exposure and establish coverage rates. But the business executives in these companies are not the only ones harnessing the power of big data to manage uncertainty. So are their legal departments.

QUANTIFYING THE LAW

What happens when a disputed insurance claim becomes a legal matter ? How can attorneys, like insurance agents, apply predictive analytics to assess their company’s legal exposure? How can legal analytics be used to improve their chances of success in court? By compiling, synthesizing, and analyzing data from state trial court records, legal analytics technologies provide corporations and their legal departments with insights into the behaviors of court participants. Legal analytics helps lift the fog that obscures the litigation process,

allowing legal teams to understand how legal disputes are actually handled in practice.

The moment an action lands on the desk of a company’s legal department, in-house counsel turn to legal analytics. Their work begins with a quick Google-like search through the millions of state trial court cases that have been curated

swiftly resolved internally without the aid of an external law firm.

by a legal analytics platform. The goal? To learn more about the party that has filed the complaint and the legal issues addressed in the action. Attorneys can type the name of a party into the platform’s search function and see how often this party has filed similar claims in other jurisdictions. With a few more clicks, they can learn the status of those cases. How often did the party settle? How often did they make it to trial? This is the kind of information that can help in-house counsel pinpoint nuisance cases that can be

If that pending legal action is more than a nuisance, in-house counsel can use that same search function to screen prospective outside counsel. This is one of the most common use cases for a platform like Trellis. With Trellis, in-house counsel can sift through a vast collection of state trial court records, building the litigation histories of each individual law firm. This search, which can cross jurisdictional boundaries, uncovers the dockets, documents, and rulings associated with the firm, allowing in-house counsel to learn how that firm drafts motions, approaches legal issues, and shapes case timelines. This is where insights get granular. In-house counsel can zoom in, studying individual attorneys and their litigation teams to understand the types of cases they tend to litigate as well as the frequency with which they work together.

The power of legal analytics also extends throughout the litigation process. Legal departments use legal analytics to probe state trial court records in order to aggregate statistically significant answers to questions about the estimated

In-house counsel can zoom in, studying individual attorneys and their litigation teams.

length of a case, its probable cost, and its likelihood of success. These insights, which can be gleaned from portals that provide verdict data and judicial analytics, help in-house counsel get a feel for the types of motions and the kinds of resources needed to resolve a particular kind of action. In-house counsel can then collaborate with the demands of their company’s financial departments, monitoring the spending of external law firms to ensure that budgets are used efficiently and effectively.

FORECASTING THE STORM

Janet Yellen, the U.S. Secretary of

the Treasury, responded to the devastation of Hurricane Ian by launching an assessment into how extreme weather impacts the cost of insurance. The assessment, which aggregates postcode level data about the prices and policies offered by various companies, will provide the “consistent, granular, and comparable insurance data needed to help assess the potential for major disruptions of private insurance coverage.” But the power of big data isn’t just integral to the insurance market. It has also become a necessity for the contemporary practice of the law, creating a positive synergy between the legal departments and

the executive suites in virtually every single industry. Nicole Clark, a business litigation and labor and employment attorney, is CEO a nd co-founder of Trellis Research.

Trellis is an AI-powered legal research and analytics platform that gives state court litigators a competitive advantage by making trial court rulings searchable, and providing insights into the patterns and tendencies of your opposing counsel, and your state court judges. To learn more, visit www.trellis.law

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UPCOMING

The General Counsel Report 2023: Global Legal Departments Alleviate and Respond to Critical Pressure Points

Tuesday, January 17, 2023 12:00 PM CST

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UPCOMING

Strategies to Tame the Complexities of Cybersecurity Incident Readiness and Response

Thursday, January 19, 2023 12:00 PM CST

Join KLDiscovery’s Laney Altamar and her guest Holland & Knight’s Bess Hinson as they offer industry insights and actionable steps to take to limit risk prior to a cybersecurity incident occurring.

UPCOMING

The Fastest Way to Reduce Discovery Costs in 2023

Thursday, January 26, 2023 1:00 PM CST

Sometimes reaching above 70% of overall costs, document review remains the most costly and time-consuming aspect of the discovery process. Register for this webinar to learn insight from practitioners on where legal departments are headed with document review, what they are looking for in their teams, and more.

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