Subject: [NEXTEL-1] Cooley Accident Case Prompts Phone Policies

From: Marcel <[email-masked]>
Date: Wed, 11 Dec 2002 17:29:28 -0500

Cooley Accident Case Prompts Phone Policies

Trial in Virginia had been set to begin
Monday

Brenda Sandburg
The Recorder
12-10-2002

Law firms are paying close attention to a
case in Virginia that may put Palo Alto,
Calif.-based Cooley Godward on the
financial hook for a hit-and-run car
accident involving a former associate.

The associate was using her cell phone
when she hit and killed a teen-age girl.
She, her husband and the firm are being
sued for $25 million. Attorneys for the
girl's family say Cooley is responsible
because the associate was conducting firm
business at the time -- an assertion the
firm denies.

Trial was set to begin Monday in Loudoun
County Circuit Court in Virginia. But it was
postponed last week at the request of the
plaintiffs who sought time to conduct a
deposition.

Nonetheless, several local firms, hoping
to avoid a similar mess, have adopted
cell phone policies for their attorneys
since the accident. And at least two
Washington, D.C., firms -- Hogan &
Hartson and Wilmer, Cutler & Pickering --
have banned the use of hand-held cell
phones to conduct firm business while
driving.

Jeffrey Tanenbaum, the head of Littler
Mendelson's occupational safety and
health practice group, said he has written
policies for a number of firms in the San
Francisco Bay Area. He said the first firm
that asked him to do so called in
response to the Cooley case.

While the policies Tanenbaum has drawn
up provide instructions as to the safe use
of cell phones, he said, "none of them
say, 'Don't drive while on the phone.'"

But Hogan & Hartson and Wilmer Cutler,
based in D.C. where the Wagner accident
has received extensive media coverage,
went a step further.

"We felt like it was important so people
understood it was a bad practice," said
George Mayo Jr., Hogan & Hartson's
managing partner of operations. "We
read about the accident and realized it
could be an issue. It suggested to us that
we should be proactive."

Like Cooley, several large firms in San
Francisco said they have not adopted
policies on cell phone use. Heller Ehrman
White & McAuliffe and Orrick, Herrington &
Sutcliffe, for example, said they have not
considered the issue.

Law firms, of course, aren't the only
employers who have cell phone-toting
workers. And the case is being watched by
employment lawyers who may be asked
to chime in on company policies on cell
phone use.

"Policy-making in this area is not
something that's been discussed a lot yet
anywhere," said Sandra McCandless, an
employment partner at Chicago-based
Sonnenschein Nath & Rosenthal's San
Francisco office. "We haven't had this as
an issue yet with clients. That's one of the
reasons this case is such big news."

How important the Cooley case is for
employers is yet to be determined.
McCandless said that would be based on
the facts and the size of a verdict. Key
facts, she said, are where Wagner was
coming from, where she was going, who
she was planning to meet, the nature of
her phone call and who owned the cell
phone.

However, Cooley's attorney, John
McGavin, of Fairfax, Va.'s Trichilo,
Bancroft, McGavin, Horvath & Judkins, said
"the only way" the case could set a
precedent is if the Virginia Supreme Court
agrees to consider that the circuit court
erred in finding an employer has no duty
to have a cell phone policy.

The Cooley case began in March 2000
when Jane Wagner, an associate in
Cooley's Reston office, struck and killed
15-year-old Naeun Yoon, allegedly while
talking on her cell phone. Yoon's father
subsequently filed a $25 million
wrongful-death suit against Wagner, her
husband and Cooley.

Cooley's liability for Yoon's death
depends on whether Wagner was
conducting law firm business at the time
of the accident, as the complaint
contends. Earlier this year, the court
dismissed another claim that Cooley was
liable because it failed to have a policy
prohibiting the use of hand-held cell
phones.

"We have a very, very, very strong sense
of what the facts are, that we are not
liable for damages," said Mark Pitchford,
Cooley's chief operating officer.
"Fundamentally, we don't believe she was
conducting Cooley business when this
accident occurred."

McGavin said Wagner had taken the day
off and was not on duty at the time of the
accident. And he said the person Wagner
was speaking to on the cell phone "says
categorically" that the call was not about
Cooley business.

But Yoon's attorney, Peter Grenier of
D.C.'s Bode & Grenier, said Wagner was
"acting within the scope of her
employment," thus rendering Cooley
liable.

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