NYC Updates Food Standards for City Agencies
On August 26, 2025, The New York City Health Department and the Mayor’s Office of Food Policy announced the release of its updated NYC Food Standards. The updated standards are a part of NYC’s broader Chronic Disease Strategy which targets conditions like diabetes and cardiovascular disease through dietary improvements. The updates standards will take effect on July 1, 2026.
The updated standards include:
Expanded restrictions on low-and no calorie sweeteners, now applying to all age groups whereas previously it was limited to children under 18;
New bans on artificial colors, flour additives, and preservatives;
Elimination of processed meats from all meals served;
Increased requirements for whole and minimally processed plant proteins; and
Stricter snack guidelines to improve nutritional quality.
Specifically, the prohibition applies to aspartame, stevia, sorbitol, FD&C Blue No.1, FD&C Blue No.2, Caramel Color, Citrus Red, Titanium Dioxide, Potassium Bromate, Butylated hydroxyanisole (BHA), and Propylparaben, among others.
NYC’s Food Standards were first introduced in 2008 and are now mandated to be updated every three years. The standards apply to meals served by agencies such as the Department of Education, Health and Hospitals, Department of Correction, and Human Resources Administration among others.
Grant Thornton Announces New Partners and Managing Directors
Chicago-based IPA 100 firm Grant Thornton (FY24 net revenue of $2.4 billion) has admitted 51 new partners and 40 managing directors.
The majority of these appointments and promotions are effective August 1, with a select group having been promoted earlier in the year in March.
Jim Peko, CEO of Grant Thornton Advisors LLC, expressed confidence in the firm’s new leaders, highlighting their alignment with the firm’s values and ambitions, as well as their unwavering commitment to quality and integrity. He emphasized their ability to deliver excellence for clients and play a key role in driving the firm’s continued growth.
“This is one of the most inspiring moments of the year — a time to celebrate the extraordinary talent and leadership that power Grant Thornton’s success,” said Peko. “These newly appointed leaders reflect the very best of who we are: bold thinkers, trusted advisors and passionate champions of our people-first, performance-driven culture. Their energy, insight and unwavering commitment to excellence will continue to shape the future of our firm. I’m incredibly proud to welcome them into these new roles — and excited for all that lies ahead.”
The professionals admitted as partners and managing directors can be found here.
How to Build an Effective Compliance Program that Prevents, Detects, and Investigates Alleged Misconduct
In May, Acting Assistant Attorney General and Head of the Criminal Division in the Department of Justice (DOJ) Matthew R. Galeotti announced areas of focus and a new approach to self-disclosure: no longer would there be a presumption of declination if companies voluntarily disclosed misconduct. Going forward, companies will receive declination if they self-disclose, fully cooperate with the DOJ, and remediate promptly (and do not present aggravating factors).
While Independent Directors, Executive Leaders, General Counsels, and Chief Compliance Officers may breathe a sigh of relief, this new approach is by no means a relaxation of white collar crime enforcement. The DOJ’s expectations of compliance remain the same, and meeting the declination requirements is essential to avoid penalties.
The DOJ is offering leniency to companies that are first through the door, but this is a calculated risk for companies. This leniency is dependent on the thoroughness of an investigation into misconduct and the effectiveness of its compliance function. The former is easier than the latter. In addition, the DOJ remains committed to its whistleblowing incentive programs.
Self-disclosure opens a dialogue with the DOJ, not a monologue. Questions will be asked, and follow-up is likely. Senior leaders and legal and compliance teams should still expect their compliance programs to be heavily scrutinized, despite self-reporting. Despite the high turnover at the DOJ and its lean team of prosecutors, it’s foolish to think that anyone will forget or ignore previously set forth expectations of a data-driven compliance program. They know and understand the Evaluation of Corporate Compliance Programs, a prosecutor’s guide when evaluating a company’s compliance program during an investigation.
Therefore, companies must be in a position where they have a strong compliance operation, regardless of whether they self-disclose or the DOJ comes knocking. Priority attention should be given to building an effective compliance program that prevents, detects, and investigates alleged misconduct effectively. A strong compliance function is more than a legal safeguard — it’s a business enabler and strategic differentiator.
Posting a policy to a portal is good, but not necessarily effective. An effective compliance program is notifying employees of policy changes, tracking access to the repository, and capturing queries to ensure clarity when delivering training. Additionally, training that touches on all the critical content is good, but not always effective. Effective training programs test comprehension, share knowledge, check results with leaders, capture trainee feedback, and integrate lessons learned from prior investigations. The common thread here is engaging with employees and capturing the data to substantiate effectiveness.
Companies must assess the success of these initiatives by analyzing their employees’ perceptions. For example, is the low number of calls to the hotline indicative of less misconduct, or does it indicate that people fear retaliation when reporting? Equally, does a high number of calls demonstrate a healthy compliance culture or a toxic workplace?
A compliance culture survey is one way of gathering this data. From these results, Compliance analyzes the impact of measures they’ve introduced and takes appropriate actions to ensure employees understand expectations, know where to seek advice, and feel comfortable reporting a concern. The surveys are used periodically to assess whether these continuous improvement efforts are improving the compliance culture.
Just a few questions sent out to employees will offer valuable insights, whether embedded into an extensive workplace survey or a simple, short “pulse” questionnaire. These should be voluntary and anonymous. Using a third-party provider helps build trust with employees as they won’t be reprimanded for giving honest answers. As a baseline, the questions should help the organization understand employee perceptions of:
Leadership tone and commitment
Comfort level to speak up
Trust in the investigation process
Clarity of expectations and training effectiveness
Peer and managerial influence on ethical behavior
It is also important to share the survey results with managers and employees, validate the culture survey data by comparing it to other data points (if available), and design the annual compliance plan to address any points uncovered through the culture survey.
The new approach by the DOJ demands a high-functioning compliance program that is focused on effectiveness. Companies must consider whether their culture, awareness, and internal controls to prevent, detect, investigate, and respond to misconduct are operating effectively. Chief Compliance Officers should check that their compliance program is operating effectively in practice, not just in theory, by:
Developing a list of measures, activities, or program attributes that substantiate the effectiveness of the compliance program.
Demonstrating how Compliance applies data, lessons learned, and root causes to tighten policies and controls, enhance training, share insights with managers, and drive early detection of possible misconduct.
Utilizing surveys and other tools to capture the company’s commitment to operating ethically and consistently with its core values.
US Law Firms Generally Busier in Second Quarter
A Surprisingly Sunny Q2…But Are Darker Clouds Ahead?
The Thomson Reuters Institute’s Law Firm Financial Index Report (LFFI) delivered some good news for US law firms for the second quarter, rising four points to 55, indicating a stronger-than-expected quarter. Against a backdrop of economic uncertainty, political instability, and rising client anxiety, law firms found themselves increasingly in demand. Clients sought guidance on everything from regulatory risk to corporate governance, contributing to a healthy uptick in billing rates and overall demand.
However, the LFFI also reveals mounting pressure on collections, rising overhead, and slipping productivity all of which are issues that threaten to undermine the seemingly stable momentum.
Who’s Winning and Who’s Not
As with many economic trends, not everyone is benefiting equally. Law firms comprising the Am Law 100, a listing of the largest 100 law firms in the US, actually saw a slight, 0.6%, decrease in demand during Q2. Meanwhile, second-hundred and midsize firms thrived, with demand up 2.6% and 3.5%, respectively.
This shift may reflect a broader realignment in how clients approach legal spending. Faced with budget pressures and complex problems, clients may be leaning more heavily on firms that offer specialized expertise or better cost efficiency. That bodes well for regional and midsize firms, especially those with strong reputations in litigation or regulatory compliance.
Where Law Firms Are Putting Their Money
While firms are making money, they’re also spending it. Investment in technology infrastructure climbed by over 8% in Q2 on average year over year, and spending on knowledge management systems rose by more than 11%, according to the LFFI. The distinction between knowledge management and technological infrastructure is, perhaps, hard to discern, of course, as knowledge management is so heavily reliant on technological infrastructure.
However, as the LFFI notes: “These investments are increasingly seen as no longer optional, and are simply the cost of staying competitive in a shifting landscape.”
Practice Areas: Litigation Leads, IP Slips
Litigation remains a standout, with 2.0% growth in demand year over year. This isn’t too surprising: uncertain environments almost always result in more disputes.
Corporate work also saw modest growth (1.3%), and M&A activity edged up slightly (0.3%). Meanwhile, demand for intellectual property (IP) fell by 1.4%, perhaps reflecting cutbacks in patent filings or reduced investment in innovation as companies watched their bottom lines.
For law firms, this underscores the importance of diversification. Practices tied to economic expansion (like IP or M&A) may be more volatile, while litigation and regulatory compliance remain resilient regardless of economic cycles.
Rising Costs & Compromising Productivity
Even as billing rates rose, not everything is rosy. Productivity fell 1.3% in Q2 year over year. Another troubling trend: law firms are struggling to collect at a time when they would normally expect to see collections rise. This could signal broader cash flow issues for clients, especially those in distressed industries. Of note, billing delays and defaults hit smaller firms harder than larger ones with more cash reserves, and it could likely force some into cost-cutting or staff reductions if it continues into Q3 and Q4.
Looking Ahead
The legal industry continues to show strength, but not without vulnerabilities. Clients still need trusted advisors, of course, but as is the case with the larger culture, value and efficiency are of paramount concern. That’s why smart firms will take the lessons of Q2 to heart and begin positioning themselves for a shakier future.
Reviewing the LFFI, law firms should:
Watch Practice-Area Shifts: Stay close to industry trends.
Balance Tech Investments with ROI: Track usage and results closely.
Mind the Bottom Line: Invest in collections processes and client communication to speed up payment cycles.
Differentiate Smartly: Find your niche and own it.
©2025. DailyDAC™, LLC d/b/a/ Financial Poise™. This article is subject to the disclaimers found here.
The Value of Consumer Surveys in Class Action Cases
As savvy plaintiffs and defendants know, the viability of class actions relies on evidence—and surveys are the best way to generate evidence about consumer behaviors or opinions. In class actions, surveys provide evidence to support or oppose class certification by establishing the basics, like what the proposed class has in common. Surveys can also help establish an appropriate amount of class-wide damages, which can minimize defendants’ risk or maximize the payout for plaintiffs. And, as with all legal disputes, surveys assist parties in generating evidence for or against the underlying claims, such as evidence about how consumers understand an advertising claim.
Of course, to be reliable—and admitted by the court—consumer surveys must be well-designed and properly conducted. The specialized Litigation Surveys & Consumer Science team at IMS Legal Strategies has designed and conducted thousands of litigation surveys, many of which have been admitted as evidence by federal and state courts, regulatory bodies, and private forums. This article draws on that experience to explain how surveys can help parties in class actions make strong cases.
Class Action Basics
In a class action lawsuit, many plaintiffs join together to sue the same defendant for the same reason—for example, many people who purchased the same defective product may file a class action together. Class actions are used when many people’s cases have enough in common to make a class action a practical way to resolve the dispute, or when pursuing separate actions would have inconsistent results or put some people’s claims at risk.
Class actions can be filed about nearly anything that could be the subject of a lawsuit with a single plaintiff, and most of the same rules apply to either type of case. However, in class actions, the court must certify the class, meaning that it must agree that the proposed class of plaintiffs meets the requirements for class certification under Rule 23(a) of the Federal Rules of Civil Procedure. Those requirements are as follows.
Numerosity: The class is large enough that it is difficult or inconvenient to join all the class members.
Commonality: All members of the class have something in common that is relevant to the allegations. (In some cases, class actions bring together multiple subclasses of plaintiffs. In the defective product example mentioned above, if the product had been sold in multiple states, there might be subclasses for each state, each of which would sue under the laws of that state.)
Typicality: The plaintiffs named in the court papers (the “named plaintiffs” or “lead plaintiffs”) are making claims that are typical of the claims made by anyone in the class.
Adequacy: The named plaintiffs will fairly and adequately represent the interests of the class.
In addition to these requirements, courts also generally require that the class be ascertainable, meaning that it is possible to determine who is a member of the class using objective criteria. The plaintiffs have the burden of proving that they meet these requirements.
Because losing a class-action lawsuit can be very expensive, defendants in class actions often try to stop the lawsuit at the class certification stage by arguing that the plaintiffs cannot meet one or more requirements of a class action. For example, they may argue that the class members do not have enough in common to form a class because the issues underlying their claims are too different. If the court does not certify the class, the plaintiffs can still sue as individuals, but they may not do so if their individual claims are not large enough to justify the expense and hassle of litigation.
If the class is certified and it eventually shows that the defendants are liable, the parties will have to deal with another issue specific to class actions: class-wide financial damages. This is the amount of money paid to redress the plaintiffs’ injuries. Damages must be based on some type of evidence, such as the cost of the defective product or the price premium paid for a falsely advertised product. Often, expert witnesses in economics use this type of evidence to provide an estimate of damages.
Damages are an issue in most lawsuits, but they are especially difficult in class actions, where it may be impractical to get evidence about each class member’s experiences. Although a court cannot grant damages until after the class is certified, defendants may be able to stop the class from being certified by showing that damages cannot be measured class-wide, and thus, class members do not have enough in common.
How Consumer Surveys Inform Class Actions
Class Certification
Because class certification can make or break a case, both sides of a class action have a strong incentive to provide evidence supporting their positions on class certification. At this stage of the case, surveys frequently focus on the commonality, or lack of commonality, among members of the proposed class. This kind of survey might ask directly about the thing respondents have in common: “Did you buy this product?”
But often, a survey at the class certification stage focuses on the underlying theory of liability in the case. For example, did a majority of consumers even notice the advertising claim that the plaintiffs allege is false? If not, the defendants may be able to argue that the allegedly false claim was not material to consumer purchasing decisions. This could show that the defendants do not have an injury in common, defeating class certification.
Our experts conducted this kind of survey for the plaintiffs in Dang v. San Francisco Forty Niners et al, a proposed antitrust class action. A California consumer who purchased clothing branded with NFL team names argued that consumers were harmed by an allegedly anticompetitive agreement among teams to grant a license to make that clothing to one manufacturer, Reebok. They argued that this artificially increased prices, so consumers were paying “anti-competitive overcharges.”
The plaintiff retained MMR Strategy Group President Bruce Isaacson, DBA (now Senior Managing Director of Litigation Surveys & Consumer Science at IMS), to measure consumers’ reasons for purchasing NFL-branded attire. The survey interviewed California consumers who had purchased NFL-branded merchandise, living in both cities that had football teams and cities that did not. The survey measured respondents’ reasons for buying a specific item, what they considered purchasing instead, and their responses to hypothetical price increases. This was intended to provide evidence that the proposed class had met commonality requirements—in this case, by showing that they were all part of the same market for the purposes of antitrust law. The matter was settled prior to a court ruling on class certification, but our expert survey evidence was a focus of the parties’ briefs on class certification.
Damages Calculations
Like class certification, damages can be a pivotal issue in a class action case. If the plaintiffs cannot show any injury using evidence that applies to the entire class, the class cannot be certified. If successful, this argument lets defendants end the litigation early on.
If a class is certified and the plaintiffs successfully prove their case against the defendant, then damages are likely to be an important issue in the case. A favorable damages calculation for plaintiffs maximizes their payout, while a favorable calculation for defendants minimizes their financial exposure. Surveys can be valuable in determining damages by measuring how many times respondents bought a product, what they paid for the product, how important a disputed issue was in their decision to buy the product, or some other factor. Surveys can also help when the damages are complex, such as when a class argues that it paid extra for a product feature that the product allegedly does not contain. Surveys are often used in class actions to calculate this type of price premium.
One example of this came in MacDougall v. American Honda Motor Co., a case in which our experts were not involved. The proposed class in this case alleged that Honda failed to disclose a flaw in the transmission of its Odyssey minivan. An economic expert for the plaintiffs conducted a survey that measured what relevant consumers would pay for the product with and without the alleged flaw, creating an estimate of that feature’s value.
The survey expert in MacDougall provided estimates of the Odyssey’s value to consumers, with and without the alleged defect in the transmission. This allowed the plaintiffs to submit an estimate of damages based on survey science. Without this kind of evidence, plaintiffs may see their cases dismissed well before trial.
Underlying Legal Questions
Of course, class actions can be (and frequently are) filed about the exact same issues that arise in individual lawsuits. Common underlying claims in class actions include deceptive or false advertising, materiality, unfair business practices, and consumer privacy.
Parties in class actions can use surveys on the underlying legal issues in a manner similar to how they would be used in other types of lawsuits: to generate evidence showing how consumers behave, what they think, or how they respond to something. This kind of survey may be useful as evidence for or against class certification, but it can also be used to prove or disprove the case itself.
Types of Surveys Used in Class Actions
Different types of consumer surveys may be useful in different class actions, but our team has seen some common themes through decades of experience and thousands of surveys. This section discusses the typical types of surveys we have conducted in class action cases.
Consumer Behavior Surveys
Parties use consumer behavior surveys as evidence of whether or how consumers purchase or use certain products or product features. This can support arguments for or against class certification or arguments central to the case itself. In a case we supported, purchasers of the BMW i3 electric vehicle with the optional Range Extender feature filed a proposed class-action complaint in California. The lawsuit argued that the vehicle had a safety defect: it slowed down abruptly when the Range Extender kicked in. The models with the Range Extender were sold for $4,000 more than other models, which operated solely on lithium batteries.
BMW, the defendant, retained Dr. Isaacson to measure how consumers used their vehicles with the Range Extender. The survey asked BMW i3 drivers how many miles they drove between charges, how often they used the Range Extender or charged their vehicles, why they chose the Range Extender, and how they learned about the Range Extender. The client used the survey’s data to argue that the class should not be certified because individual issues, not common issues, predominated. BMW ultimately succeeded in its motion to dismiss the case at the summary judgment stage.
False Advertising Surveys
In a country where products are sold nationwide to thousands of consumers, false advertising class actions are common. A false advertising (or advertising communications) survey shows consumers an ad under dispute and asks questions to measure how many people take away an allegedly false impression. Our team has designed and conducted numerous advertising communications surveys and handled rebuttals to opposing expert witnesses in false advertising cases.
One such matter we supported was McCrary v. The Elations Company, a class-action case in which consumers sued a maker of an over-the-counter arthritis pain supplement for (among other things) a claim on its label that it was “clinically proven.” The plaintiffs hired an expert to design and conduct a survey measuring responses to the label from consumers of over-the-counter arthritis pain or joint discomfort medications. The defendant engaged Dr. Isaacson to rebut that survey.
In his report, Dr. Isaacson identified multiple problems with the opposing expert’s survey, including its failure to include any survey control and the fact that it interviewed people who did not qualify for the lawsuit’s proposed class. His rebuttal report also detailed other issues with the survey, such as its use of packaging images that did not match the real packaging and were illegible in any case. His report concluded that the opposing expert’s report was too flawed to be reliable as evidence. The court declined to decide the case in favor of the plaintiffs on the strength of the opposing expert’s survey.
Materiality Surveys
In false advertising class actions, plaintiffs often must present evidence that an ad or marketing statement affected their buying decisions, meaning that it was material. A materiality survey can show whether the disputed communication influenced the buying decisions of a substantial proportion of consumers.
There are several approaches to designing a materiality survey, depending on the specific product, the industry, the allegations, and the proper population. Our team has conducted surveys that use both direct and indirect methods of measuring materiality.
Conjoint Surveys
Lawsuits are designed to compensate the injured parties, but arriving at the right dollar amount can be complex—especially in a class-action case with many plaintiffs. To generate a damages request based on evidence, parties sometimes use choice-based conjoint surveys. This type of survey measures consumer preferences for product features by presenting respondents with hypothetical products for sale, represented by sets of product features offered at certain prices. Respondents are asked to select among hypothetical products with different features. This requires them to make trade-offs when deciding among the various combinations of attributes and levels presented to them. For example, would they be willing to accept a product without certain features if it were offered at a deep discount?
Once respondents have made choices among enough of these “choice sets,” the researchers use that data to compute the average price premium: the amount of extra money the consumer is willing to pay for the product feature of interest. An economic damages expert may then use this information to calculate damages for the class.
Episode 128: Nandita Raghavan, Summer Associate [Podcast]
This episode of The Path & The Practice features a conversation Nandita Raghavan, a summer associate in Foley’s Los Angeles office. In this discussion, she reflects on growing up in Pleasanton, California, earning her undergraduate degree from the University of Southern California and subsequently attending the USC Gould School of Law. Nandita discusses on her decision to defer attending law school to teach for two years. She also provides advice on the best way to learn about law firms when you’re looking for a Big Law summer associate position. Finally, Nandita talks about her experience as a summer associate at Foley and gives great advice on the importance of knowing what you want out of law school.
Nandita’s Profile:
Title: Summer Associate
Foley Office: Los Angeles
Practice Area: Litigation
Hometown: Pleasanton, CA
College: University of Southern California
Law School: USC Gould School of Law
The Path & The Practice Podcast Episode 126: Randall Carter, Summer Associate [Podcast]
This episode of The Path & The Practice features a conversation with Randall Carter, a summer associate in Foley’s Boston office. In this conversation, he looks back on growing up in Cambridge, Massachusetts, attending Colgate University for undergrad and attending Harvard Law School, after transferring from Northeastern University School of Law. Randall reflects on the jobs he held before law school, discusses his transition to law school as well as his decision to transfer from Northeastern to Harvard. Additionally, he shares his experience navigating the Big Law interview process, decision to join Foley as a summer associate, and the experience he had at Foley. Finally, Randall provides wonderful insight on the importance of preparing for interviews and striking a balance between being both authentic and polished.
Randall’s Profile:
Title: Summer Associate
Foley Office: Boston
Practice Area: Litigation
Hometown: Cambridge, Massachusetts
College: Colgate University
Law School: Harvard Law School
The Path & The Practice Podcast Episode 127: Nick Jerschefske, Summer Associate [Podcast]
This episode of The Path & The Practice features a conversation with Nick Jerschefske, a summer associate in Foley’s Milwaukee office. In this discussion, he reflects on growing up in Franklin, Wisconsin, earning his undergraduate degree from the University of Maryland Global Campus and subsequently attending Marquette University Law School. Nick details the nearly a decade he spent focused on a career in music and the various jobs he held during the time before deciding to join the U.S. Army. He discusses his decision to attend law school and how, once in law school, he focused on building relationships to help him find both 1L and 2L job opportunities. Nick also shares his experience as a summer associate at Foley and provides advice on the importance of not self-selecting out of opportunities.
Nick’s Profile:
Title: Summer Associate
Foley Office: Milwaukee
Practice Area: Transactions
Hometown: Franklin, WI
College: University of Maryland Global Campus
Law School: Marquette University Law School
SAX Announces Acquisition of Maddaloni Nydick & Keenan PC
Parsippany, N.J.-based IPA top 100 firm SAX (FY24 net revenue of $110.9 million) announced its acquisition of Maddaloni Nydick & Keenan PC (MNK), effective November 15. This strategic move enhances SAX’s capabilities, deepens its client service offerings and furthers its mission of providing expert guidance to business owners, entrepreneurs and high-net-worth individuals.
Founded in 1989, MNK has earned a strong reputation for its client-first approach and internal growth, driven largely by referrals and a steadfast commitment to staff development. Over the past several decades, MNK has consistently expanded alongside its clients’ success, attracting top-tier talent and maintaining an unwavering focus on quality service.
The MNK acquisition marks the first transaction completed by SAX following its recent minority investment from Cobepa, an independent investment company with offices in Brussels and New York. This milestone underscores SAX’s strategic growth trajectory fueled by the Cobepa partnership, which is accelerating expansion across the East Coast, enhancing service capabilities and fostering innovation while the firm remains proudly independent.
As a result of this integration, SAX now comprises 70 partners and 363 total employees, with a presence across five offices in New Jersey, New York, Mumbai, India, and a remote workforce spanning 25 U.S. states.
“This acquisition represents a meeting of shared values – client dedication, integrity, and excellence,” said Joseph Damiano, CEO of SAX. “We are thrilled to welcome MNK into the SAX family. Their longstanding commitment to client success and internal growth is a natural complement to our vision as we continue to expand our footprint and capabilities. It’s also especially exciting to mark our first post-Cobepa transaction with a firm whose culture and approach align so perfectly with ours.”
Steve Nydick, MP of MNK, added, “For more than 35 years, we’ve taken pride in growing with our clients, fostering a team of professionals who care deeply about the work they do and the people they serve. Joining SAX allows us to enhance that mission with greater resources and reach, while maintaining the core values that have defined MNK since its founding.”
Michael Maddaloni, MP of MNK, commented: “Our partnership with SAX represents an exciting new chapter for our firm, our clients and our people. Together, we can provide an even broader range of services and opportunities, while preserving the personal relationships and trust that have been the cornerstone of MNK for more than three decades.”
Effective Strategies for Daubert and Robinson Challenges
In high-stakes litigation, expert testimony that cannot withstand a Daubert or Robinson challenge can derail even the most well-prepared case. A failed Daubert or Robinson challenge can leave attorneys without their key witnesses due to flawed methodology, insufficient preparation, or a misalignment between the expert’s qualifications and the case facts.
To explore how litigators can avoid this pitfall, IMS Senior Jury Consulting Advisor Chris Dominic sat down with veteran trial attorney Larry Cotten of Cotten Schmidt. A 46-year courtroom veteran, Larry made history as the first lawyer in Texas to successfully bring a Robinson challenge, helping shape the state’s evidentiary standards through the landmark DuPont v. Robinson decision.
Their discussion delivered valuable insight into expert witness strategy, from selection and preparation to courtroom presentation and judicial expectations.
The Landmark Case That Changed Texas Trial Practice
The DuPont v. Robinson case emerged from a wave of litigation in the 1990s alleging that DuPont’s fungicide, Benlate, harmed ornamental plants. The plaintiff’s expert witness, Dr. Carl Whitcomb, was a key fixture in these cases across the country. When the case reached Texas, Larry saw an opportunity.
Drawing on the US Supreme Court’s then-recent Daubert v. Merrell Dow Pharmaceuticals ruling, Larry noted the parallels between Federal Rule of Evidence 702 and Texas Rule 702. He crafted a challenge that ultimately persuaded the Texas Supreme Court to adopt a similar gatekeeping role for judges, establishing what is now known as the Robinson standard.
Strategies for Supporting or Challenging Experts
Based on his experience, Larry offered practical, battle-tested strategies for both sides of the courtroom.
Supporting Your Expert:
Select Strategically: Choose an expert with proven expertise in the proper discipline. Do not rely on titles alone. Take a comprehensive look at the expert’s background, experience, and fit for the specific issues in your case.
Educate Thoroughly: Ensure they understand not only the facts of the matter but also the legal standards to which they will be held.
Prepare In Person: Build trust and coach them face-to-face on how to communicate effectively under scrutiny.
“You need to make sure that your expert knows the legal side as well as the scientific side,” Larry emphasized. “And that takes real preparation and collaboration.”
Challenging the Opposition:
Do Your Homework: Use the required disclosure of prior depositions and trial testimony to find inconsistencies in the opposing expert’s testimony.
Focus on Methodology: Evaluate whether the expert adheres to accepted standards and addresses all Robinson factors.
Know the Judge: Tailor your strategy to the judge’s history with expert challenges. Some judges are strict gatekeepers; others are more permissive.
Judges as Gatekeepers
One of Robinson and Daubert’s most transformative impacts was the shift in responsibility from juries deciding the weight to be given to the testimony or the credibility of the expert witness to judges in determining the admissibility of expert witness testimony. As Larry explained, “Judges didn’t have this role until Robinson. Some would never grant these motions, others took their gatekeeping duty seriously to prevent reversible error on appeal.”
Understanding a judge’s tendencies, whether they lean toward broad admissibility or strict scrutiny, can shape your entire litigation strategy.
Visuals That Clarify, Not Confuse
Expert demonstratives can make or break a case. Larry and Chris agreed that clarity is key when utilizing visual aids.
“Sometimes the demonstratives are so technical that only the testifying expert understands them,” Chris noted. Larry added, “If you’ve got clear demonstratives that help translate what might otherwise go over someone’s head… that’s very helpful for decision-makers.”
Whether in a hearing or at trial, visuals should simplify, not complicate, the expert’s message.
Start Early, Stay Strategic
For plaintiff attorneys especially, early expert engagement is critical. “Almost every case today is going to have some expert testimony,” Larry said. “Sometimes the law requires it, and other times you need it to clearly explain complex issues to the court. You can’t start preparing early enough.”
Bringing an expert witness on board at the outset, often even before filing the complaint, allows time to align strategically and prepare them to withstand a potential Daubert or Robinson challenge.
Ten Minute Interview: Program-Related Investments [Video]
Brian Lucareli, director of Foley Private Client Services (PCS) and co-chair of the Family Offices group, sits down with Michael Calabrese, partner and member of our Fund Formation and Investment Management group, and Emmaline Jurgena, associate and member of our Estate Planning group, for a 10-minute interview to discuss program-related investments. During the session, Michael and Emmaline provided an overview of program-related investments, including their purpose for charitable organizations, the necessary IRS documentation, and how they compare to traditional investments.
The AI-Enabled Insurance Defense Firm: A Strategic Roadmap for an Era of Disruption
The question is no longer if AI will impact the legal industry, but how. As OpenAI’s CEO Sam Altman has noted, today’s AI is the least capable it will ever be. For insurance defense law firms, this shift is not a distant possibility; it’s a present-day strategic challenge that is reshaping client relationships and internal firm dynamics.
AI is perceived as an existential threat by some and an incredible opportunity by others. In this turbulent environment, where social, economic, and technological pressures converge, the ultimate competitive advantage will belong to firms that become a source of stability and truth. This is a time for transparent leadership that avoids false promises of a work-free utopia or dire warnings of obsolescence. It is a time to create a clear picture of the future, outlining both the opportunities and the challenges.
Navigating this requires a new mindset. We believe the single biggest mistake a firm can make is to relegate its AI strategy to IT vendors. This is not about technology driving your firm; it is about your firm’s leadership driving its technology. The goal is to empower your people with vetted tools and clear protocols—creating a structure that manages risk while encouraging the very creativity that will unlock AI’s true potential.
Here is a practical roadmap for leading your firm through this transformation.
PHASE 1: Laying the Foundation (0–12 Months)
Focus: Safe innovation, data hygiene, and adoption transparency
The foundational work you do now will determine your ability to compete in the future. The theme for this year is establishing a framework for safe innovation, cleaning up your data, and confronting the human challenges of adoption with honesty.
1. Build the “Safe Sandbox”: Your Formal AI Usage Policy
This is a non-negotiable, immediate priority. Too often, firms either have no AI policy at all or rely on documents that don’t reflect how work is actually done. We recommend that a real policy is not a list of restrictions, but a set of guardrails that creates a “safe sandbox” for innovation.
A clear policy should enable creativity within a secure structure:
Define Permissible Tools: Endorse specific, secure, enterprise-grade AI platforms. This gives your team powerful tools to work with while explicitly forbidding the use of personal or public LLMs for any client work.
Establish Data Guidelines: Outline exactly how client and firm data can and cannot be used, ensuring confidentiality is paramount.
Mandate Disclosure: Create a clear process for internal disclosure when AI is used in completing work product. This is not just about compliance; it is about understanding how these tools are being used and sharing the value they’re creating across the firm.
2. Conquer Your Data Silos
We advise our clients that this is the single most important action they can take this year. Your firm’s historical data, such as case outcomes, matter cycles, and timekeeper activity, is your most valuable, proprietary asset in the AI era. LLMs are powerful, but they are only as good as the data they can access. If your data from time & billing, accounting, document management, email, and voicemail systems is not integrated, and if relevant data from text messages is not captured, that information remains trapped.
Many law firms are already adopting some form of AI, ranging from a few Microsoft Copilot licenses to a variety of third-party applications. But without a unified data strategy, these efforts stay piecemeal. Clean, consolidated data creates a massive competitive advantage. It lets you train models, generate insights, and predict outcomes with far greater accuracy than relying on generic tools.
3. Confront the Adoption Dilemma
Technology adoption in law firms has always been a top-down challenge. You are likely facing a dual problem: some people are using unsanctioned AI, while others resist it. Younger associates may fear that AI will replace the very tasks they need to hit their billing targets.
Leadership’s role is to address this fear head-on with a clear and honest vision.
Update Your Development Framework: We recommend that performance reviews evolve to reward efficiency, project management skills, and the effective use of sanctioned technology explicitly.
Show Them a New Path: It is important to demonstrate how using these tools to produce better, faster results leads to advancement. The goal is to shift their focus from hours logged to value created and to show them that the firm is invested in their long-term success in this new paradigm.
PHASE 2: Building the System (Months 12-24)
Focus: Incentives, tools, and top-down leadership
With a solid foundation, you can begin building the systems and culture of an AI-enabled firm. This phase is about upgrading your tools, refining your message, and leading the cultural shift with conviction.
1. Redefine Metrics and Create Positive Incentives
Once you begin to change the conversation around performance, we advise that you back it up with real incentives. Consider creating direct monetary bonuses for teams and individuals who successfully integrate AI to improve case outcomes and efficiency. This sends a powerful message that the firm is serious about a new definition of value and directly counters the fear that AI is only a threat to compensation.
2. Invest in “Good Enough” System Upgrades
Don’t wait for a perfect all-in-one platform. If your core systems are outdated, even a modest investment in modern, cloud-based software with open APIs is a smart move. Breaking down data silos now is better than waiting for a miracle product that may never arrive. The goal is progress, not perfection.
3. Lead the Cultural Shift from the Top
Many of us can remember senior partners who refused to use email, forcing secretaries to print every message and costing firms incalculable sums in lost efficiency. Today, a similar reluctance exists around AI, and ironically, it’s often most pronounced among the very lawyers who stand to benefit the most.
Just as AI has enabled physicians to spend less time on administrative tasks and more time on diagnosis and discussion with patients, the same opportunity exists in legal. For seasoned attorneys, AI can free your most senior practitioners from tedious work like filling out timesheets or reviewing volumes of discovery, to focus on what they do best: crafting strategy, delivering analysis, and winning cases. Firm leadership must actively champion these use cases – not only to drive adoption, but to demonstrate AI’s real value.
At the same time, leaders must address the valid concern that these efficiency gains can reduce the hands-on experience younger lawyers need to to develop sound judgment and skill. This tension between efficiency and skill-building is real. While there is no easy solution, it is critical for leaders to acknowledge it and actively develop new models for mentorship and training in an AI-enabled world.
PHASE 3: Shaping the Future (1–3 Years Out)
Focus: Billing models, analytics, and talent strategy
This is where your foundational work pays off, allowing you to implement more sophisticated strategies that create a durable competitive advantage.
1. Evolve Billing Models in Partnership with Clients
With a year or more of data on AI-driven efficiencies, you can move beyond theoretical conversations about billing. The future will require more sophisticated, value-based models.
Pilot “Deliverable-Based Billing”: We suggest approaching a trusted key client to run a pilot program. Use your data and AI tools to break down a typical client matter into its discrete deliverables or the identifiable components that contribute to a successful outcome. While every case has nuances, you can create a pro forma set of deliverables and price them based on the value they provide. This pilot program should be designed to be flexible, allowing you to adjust the components and their pricing as you learn what truly drives results.
Develop a Shared “Alignment Model”: This pilot program should be coupled with a new concept: a transparent Alignment Model. This is not just about billing; it is a new way of structuring the client-firm relationship for a true win-win. The model should seek to align the firm’s goals (profitability, efficiency) with the client’s goals (predictable costs, favorable case outcomes). It involves collaboratively categorizing efforts into “necessary” and “optional” and thinking in terms of potential outcomes. This model, co-developed using your firm’s experience and AI-driven insights, becomes the mechanism to calculate and share the mutual benefits of a more efficient, effective partnership.
2. Implement AI-Powered Analytics
Once your data is clean and accessible, you can deploy more advanced tools to generate a wide range of analytics and operational KPIs. Here are just a couple of examples of what becomes possible:
AI Timekeeping: Pilot emerging AI timekeeping tools to automate time capture, which not only improves accuracy but also frees up hundreds of hours of attorney time per year.
Profitability Analysis: Feed this rich data into analytics platforms to gain a sophisticated understanding of client and matter profitability, moving beyond simple revenue-per-hour to true profit margin.
3. Cultivate the “Lawyer-Strategist”
Your long-term talent strategy will need to shift. With AI handling many of the routine tasks that junior associates once performed, we recommend being more deliberate in your hiring. The focus can move from hiring bodies to fill billable hour quotas to recruiting and developing strategists. The future value of your partners will be their ability to provide high-level strategic counsel. AI will draft the first version. Your lawyers must craft the final, winning argument. That’s the shift.
The Foundation: Moving from Short-Term Tactics to Long-Term Strategy
For any of this roadmap to be effective, firms should confront a difficult truth: as a profession, we are often poor strategic planners. The traditional law firm model runs on short-term income generation. Capital investments are often minimal or, worse, mis-prioritized and spent on physical office space based on an outdated viewpoint of how work gets done, while critical investments in technology and training systems are deferred.
This short-term focus can create a broken strategic planning process. Many firms hire a consultant, develop a plan, and then shelve it, having expended their budget and attention. When implementation stalls, it’s easy to conclude planning itself is a waste of time. It is not. But a broken process is.
Furthermore, this leadership style works best when times are good. In periods of significant disruption, a well-communicated, formal plan becomes essential. It ensures everyone in the firm understands the vision, goals, and priorities, providing the stability and clarity people need to navigate uncertainty, rather than relying solely on the managing partner’s wisdom.
We recommend that firms shift their focus from an instantaneous, current-year planning horizon to thinking in terms of the next decade. This requires a commitment to an ongoing strategic planning process. Adopting a fully vetted strategic planning framework, such as Blue Ocean Strategy,[*1] is a sound approach to navigate the intense changes ahead. This process is often exponentially more beneficial when guided by an experienced advisor who contributes strong technical resources and a deep understanding of law firm dynamics. This combination of a good process and the right expertise helps determine spending priorities based on their short- and long-term impacts, fostering a proactive approach to building a sustainable advantage rather than making reflexive investments in technology because everyone else is.
Conclusion: Your Mandate as a Leader
AI disruption is real, but it is manageable. Your job is not merely to manage a technology rollout; it is to lead your people through a period of profound change. The most important action you can take is to provide a stable, transparent vision for the future, grounded in a disciplined strategic process.
Start by breaking down your data silos because clean, consolidated data is the price of admission to the future of law. But more importantly, commit to building a culture that balances structure with creativity. The firms that thrive in this new era won’t see AI as a replacement for their lawyers, but as a tool that transforms them into what clients value most: sharper strategists, trusted advisors, and true business partners.
[^1]: The concepts of Blue Ocean Strategy and Blue Ocean Shift were developed by W. Chan Kim and Renée Mauborgne in their books of the same names.