Litigation

Emile Ashe

Top Four Things I Learned From Experiencing My First Trial

By Emily Ashe |

Having just completed my third full year of practice I was privileged enough to have had the unique opportunity of participating in my very first trial as second chair. Call me naive but I definitely had TV trial ideologies. I know this may come as a huge surprise to most of you (especially the veteran lawyers reading this) but take it from me—TV does not do the actual trial experience justice.

Josh Cohan

Judicial Retirement Age at 70 or 75? No Clear Answer

By Joshua Cohan |

How do you feel about mandatory ­retirement? How many 75-year-olds do you know that are still vital and capable?

Gifted Students' Right to an Appropriate Education Under Pa. Law

By Tracy A. Finken |

The Individuals with Disabilities Education Act (IDEA) is a federal law that ensures special education to eligible children with disabilities. The IDEA governs how states address the educational needs of children with disabilities. Pursuant to the IDEA, each child with a disability must be provided with a free appropriate public education (FAPE) that prepares them for further education, employment and independent living. A FAPE is the standard of education that is guaranteed by the IDEA to be provided to all children between the ages of 3 and 21. FAPE requires that each eligible child receive a program of special education and related services individually designed to meet his or her unique needs, from which that child must obtain meaningful educational benefit. FAPE must be provided in conformity with an ­individualized ­education plan.

James W. Cushing

Fallout for Injuries Sustained by Contractor's Employee

By James W. Cushing |

When construction is taking place on a piece of real estate, and an employee of the contractor doing the work is injured there, who bears the potential tort liability for the injury: the property owner, the general contractor, or both?

Arbitration-Mediation

Can Mandatory Arbitration Agreements Ever Be Stricken?

By Abraham J. Gafni |

Decisions of the U.S. Supreme Court have repeatedly reflected that arbitration must be accorded preferential treatment so that provisions waiving the right to litigate disputes (often involving class actions) and mandating arbitration may not be stricken lightly.

Second Circuit Rules Dodd-Frank Protects Internal Whistleblowers

By Peter J. Kreher 
and Frank P. Trapani |

This article describes the Berman v. Neo@Ogilvy LLC decision and some key takeaways from it.

Physician Liability for Harm to Third Parties

By Stephen J. Pokiniewski Jr. |

A case involving the alleged failure of a physician to diagnose a patient's hereditary cardiac condition and advise of the risk to the patient's son raises once again the issue of the scope of physician liability for harm to third-party nonpatients.

Abraham J. Gafni

Losing the Right to Arbitrate by Engaging in Litigation

By Abraham J. Gafni |

Attempts to enforce a contractual right to arbitrate are often stymied by the contention that arbitration had been waived because a party engaged in protracted litigation prior to asserting that right.

Collateral Source Rule Is Alive and Well in Pennsylvania

By Stephen J. Pokiniewski Jr. |

After the passage of the Affordable Care Act, the defense in catastrophic injury cases has attempted to use the act to limit the plaintiff's claim for future medical expenses.

Evolving Process of Preserving and Using Cellphone Evidence

By Leeza Garber |

In the last few years, an increasing number of digital forensic companies and computer security providers have investigated phones being sold on eBay and Craigslist in order to prove one significant point.

Who Is a Proper Party in an Arbitration Proceeding?

By Charles F. Forer |

Editor's note: This article describes a hypothetical situation.

James W. Cushing

Superior Court Relaxes Rules for Requests for Admissions

By James W. Cushing |

The discovery process is one of the most critical parts of litigation. As any practitioner knows, the discovery process has very specific and procedurally established deadlines. While these deadlines are frequently missed, and subsequently compelled through court order, one form of discovery carries with it, in theory at least, much stricter deadlines: requests for admissions.

Rebuttal, Reply, Riposte: A Detailed Discussion

By Jay Evans |

As a break from my usual format, as well as a break from the sometimes unfortunate tendency of the headstrong (including lawyers) to talk over prior mistakes, I want to start with a "correction" related to my last appellate practice column.

Are Skill Sets of Female Attorneys Being Underutilized?

By Shayna Slater |

Janet Yellen, the first female chair of the Federal Reserve, said, "Making fuller use of the talents and efforts of women in the workplace has made us more productive and prosperous."

Abraham J. Gafni

Can Unconscionable Arb Provisions Be Waived and Severed?

By ADR |

The Federal Arbitration Act (FAA) and state law favor arbitration agreements, and, as the FAA reflects, such agreements are "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract."

Charles F. Forer

Can Lawyers Get Two Bites at the Apple in Arbitration?

By Charles F. Forer |

Editor's note: This article describes a hypothetical situation.

A Case Against Private Health Insurance Liens in Personal Injury

By Paola Pearson |

Few things are more frustrating than the moment you have to explain the concept of a health insurance lien to a personal injury client. Having not read or understood the legalese in the fine print of their insurance policies, the usual and natural reaction is, "What do you mean I have to pay them back?" With some restraint, my response is always the same: "I'm equally thrown by it, but that's just the way it works."

Kenneth Racowski

Circuits Split on Ascertainability in Rule 23(b)(3) Class Actions

By Kenneth L. Racowski |

Class actions are hot right now. Since the U.S. Court of Appeals for the Third Circuit issued its seminal decision in In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2008), and the U.S. Supreme Court issued its opinions in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011), and Comcast v. Behrend, 133 S. Ct. 1426 (2013), there has been a deluge of case law addressing the level of scrutiny and analysis required when considering the certification of a class under Federal Rule of Civil Procedure 23.

Act 105: The Most Robust Civil Remedy Against Sex Traffickers

By Ashley R. Lynam |

Human trafficking is a troubling area of public interest that has gained wide media attention during the past several years. Increased public awareness has brought desperately needed changes for victims and survivors of commercial sexual exploitation through legislative and policy reform, stiffer criminal penalties, and increased social services.

gavel and book

Court Addresses First-Impression Issue on First-Filed Rule

By Peter J. Kreher and Frank P. Trapani |

In Chavez v. Dole Food, the U.S. Court of Appeals for the Third Circuit addressed for the first time whether a federal district court may dismiss a case with prejudice under the first-filed rule. This article describes the application of the first-filed rule, the court's decision, and its implications.

Antique Map New England

Impact of 'Daimler' on Registering as Foreign Corporation

By Andrew S. Gallinaro and Elizabeth A. Ford |

What are the jurisdictional consequences of registering as a foreign corporation in a state where a corporation would like to conduct business? If, for example, a California corporation registers to do business in Pennsylvania, is it subject to suit in Pennsylvania by a New York resident based on conduct that occurred in New Jersey? Under specific personal jurisdiction analysis, the answer is clearly no. But is there an argument that the corporation is subject to general personal jurisdiction, making it susceptible to suit in Pennsylvania despite the lack of any connection between the dispute and the commonwealth?

James W. Cushing

US Supreme Court Weighs in on Threats Over Social Media

By James W. Cushing |

The new reality of social interaction includes the popular, and seemingly always proliferating, social media websites like Facebook and Twitter. Considering the increasing ubiquity of social media, it was only a matter of time before the U.S. Supreme Court would weigh in on its use, which it had the opportunity to do in the matter of Elonis v. United States, 135 S.Ct. 2001 (2015).

Abraham J. Gafni

Rights and Obligations of Nonsignatories in Arbitration: Part II

By Abraham J. Gafni |

Generally, a party that has not consented to arbitration may not be forced to submit to it.

Uber headquarters in San Francisco

Uber Model Leads to Heightened Risk of Distracted Driving

By Ryan D. Hurd |

After dining near Rittenhouse Square last month, I faced the challenge of making the 25-block trip home. Walking the distance in the summer heat was only slightly less offensive than competing with a half-dozen other couples each trying to flag down a taxi. Fortunately, I previously downloaded the Uber app. With a few taps on my phone, a black Uber SUV appeared. I jumped in and basked in the air-conditioned cool, while taking in the warm glow of two dash-mounted mobile devices stationed next to the built-in vehicle navigation screen.

Charles F. Forer

Drafting Agreements to Avoid Picking the Wrong Arbitration Forum

By Charles F. Forer |

Bob has studied the rules of various arbitration providers. He knows an effective advocate chooses the arbitration forum that offers the rules best suited for the particular controversy. So, for instance, "If you want depositions, why not pick an arbitration forum whose rules expressly allow depositions?" Always the riddler, Bob put this question on his office wall.

Local Counsel and the UIDDA: Must You Retain? Should You Retain?

By Mark E. Seiberling and Joshua J. Voss |

The Uniform Interstate Depositions and Discovery Act (UIDDA) does not require attorneys to retain local counsel in order to domesticate subpoenas across state lines, but practical considerations should have you picking up the phone to engage local representation.

Kenneth Racowski

Post-Closing Control of Seller's Attorney-Client Privilege in M&A

By Kenneth L. Racowski |

Litigation involving mergers, asset acquisitions or other change-in-control transactions can give rise to complicated questions concerning the attorney-client privilege. In recent years, a developing body of case law has emerged regarding the control of the attorney-client privilege in the context of mergers and acquisitions.

Abraham J. Gafni

Rights and Obligations of Nonsignatories in Arbitration: Part I

By Abraham J. Gafni |

It is generally understood that the obligation to submit to arbitration (unless mandated by statute or court rule) arises by reason of a written (and occasionally oral) contractual obligation entered into by the parties.

Josh Cohan

Presumed Damages May Be Available in Constitutional Torts

By Joshua Cohan |

Your client's constitutional rights have been violated but your client has not suffered any injury other than the deprivation of the constitutional right itself. The case appears to be a loser. Is it really worth pursuing if you cannot prove an actual injury? This scenario has certainly presented itself to many legal practitioners. Even though it looks like you may be out of luck in getting damages for your client, there might be another way.

Charles F. Forer

Interlocutory Appeals of Orders Denying Applications for Arb

By Charles F. Forer |

Having read so many cases on the "policies favoring arbitration," Bob has several mantras he mutters to anyone who will listen. (A shrinking audience.) One mantra: Parties have a right to take an immediate interlocutory appeal from a trial court order that refuses to compel arbitration.

EEOC Sues Company for Inflexible Employee Leave Policy

By Peter J. Kreher and Frank P. Trapani |

Earlier this year, the Equal Employment Opportunity Commission (EEOC) sued an employer, alleging that it violated the Americans with Disabilities Act (ADA) by firing disabled employees who requested additional time off after they had exhausted their paid time off and/or any unpaid leave to which they were entitled under the Family and Medical Leave Act (FMLA).

Will Sylianteng

Attenuation of the Attorney-Client Privilege

By Will Sylianteng |

In One Beacon America Insurance v. Philadelphia Indemnity Insurance, No. 2012-cv-4490 (April 13, 2015, Lackawanna CCP), the Lackawanna County Court of Common Pleas held that the plaintiff insurance company's inadvertent disclosure of an intra-office memorandum, referred to as a case conference sheet, was not privileged and therefore did not open the door to a subject-matter waiver of attorney-client privilege, despite the fact that it revealed sensitive communications from the plaintiff's attorney.

Dave Dambreville

Defining Terms of an Insurance Policy After 'Rourke'

By Dave Dambreville |

The language of an insurance policy must be clear and specific in order to effectuate the intent of the insurer and insured. Failure to sufficiently define key terms and conditions of a policy in a plain and unambiguous way can have the effect of broadening the scope of coverage of the insurance policy. For best practices, insurers should be advised to specifically define each term that may have an impact on the scope of coverage of their policies.

Innovator Liability Approach in Pharmaceutical Litigation

By Miriam Barish |

One of the first questions I ask potential clients in pharmaceutical litigation is whether they took the name brand of the drug or the generic version, as I know under the current law in most states they will only have an actionable claim if they took the name brand. This limitation originates from the U.S. Supreme Court's ruling in Pliva v. Mensing, 131 S.Ct. 2567 (2011).

/image/pa/300_pics/McClure-Wallace-Article.jpg

Protecting Your Trade Secret and Confidential Information

By Shannon McClure and Brooke Wallace |

In today's world of high-paced technology, companies face greater challenges than ever in protecting their confidential and proprietary information. Employees are more mobile than ever—and so is every employer's sensitive information.

gavel and book

Current Status of Intended Use, Intended User Doctrines

By Patrick C. Lamb and Patrick Devine |

In November 2014, the Pennsylvania Supreme Court issued its landmark opinion in Tincher v. Omega Flex. Among other things, the court held that a plaintiff can satisfy the "defective condition" element of her products liability action by proving that the product in question was "dangerous beyond the reasonable consumer's contemplations."

Abraham J. Gafni

Don't Ignore the Details of the Arbitration Agreement

By Abraham J. Gafni |

Often the alternative dispute resolution provisions in a contract are considered only after a lengthy and complex negotiation involving the substantive aspects of a transaction.

Keeping the Confidential Arbitration Proceeding Confidential

By Charles F. Forer |

You want to find a well-drafted and carefully-thought-out arbitration agreement? Ask Bob to look into his form file. He will pull out just what you need. Over the years, he has refined and refined his forms—to correct errors he made in prior iterations—and he now has a form arbitration agreement that is the best for any type of dispute and for any type of issue. At least that is what Bob tells his colleagues.

FDA Poised to Enact Rule That Will Advance Consumer Safety

By Tracy A. Finken |

On March 27, the U.S. Food and Drug Administration held a public meeting regarding its proposed generic-drug labeling rule. The rule proposed by the FDA in November 2013, titled "Supplemental Applications Proposing Labeling Changes for Approved Drugs and Biological Products," would allow a generic manufacturer to use the CBE-0 process to implement a safety-related labeling change for its drug unilaterally, prior to the FDA approving the label change.

Will Sylianteng

Why Aren't We Videotaping More Depositions?

By Will Sylianteng |

Have you ever left a deposition and felt like you nailed it? Not because you asked every possible question (we all know that never happens, as there is always that one question everyone remembers only after adjournment), but because the look on the deponent's face after your thorough inquisition was priceless. You wished you had a video of it, right? But you don't. Why?

Emile Ashe

Make a Personal Injury Mass-Tort Client Feel Like Your Only Client

By Emily Ashe |

It goes without saying that things change with time, and the legal industry has been no exception. Mass torts have become increasingly more common and have immensely changed the landscape of the legal industry.

Kenneth Racowski

No Consensus on Application of 'Comcast v. Behrend'

By Kenneth L. Racowski |

It has been two years this month since the U.S. Supreme Court issued its decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), reversing the U.S. Court of Appeals for the Third Circuit's class certification of antitrust claims brought by more than 2 million cable subscribers.

Injunction Barring Parallel State Class Action Rejected

By Frank P. Trapani and Peter J. Kreher |

There is a split of authority over whether a federal district court that has preliminarily approved a class action settlement may enjoin class members from pursuing related litigation pending final approval of the settlement. In a recent opinion authored by Judge Frank Easterbrook, the U.S. Court of Appeals for the Seventh Circuit entered the fray and held emphatically that federal district courts lack the power to issue such injunctions, at least with respect to litigation pending in state court.

Abraham J. Gafni

Who Decides Res Judicata and Collateral Estoppel in Arbitration?

By Abraham J. Gafni |

Litigating parties recognize that both res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply not only to court decisions but to those of an arbitrator as well.

Will Sylianteng

District Court Sanctions Attorney for Ghostwriting Expert Report

By Will Sylianteng |

It has been less than one year since the Pennsylvania Supreme Court codified, via amendment of the civil practice rules, its holding in Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa.2014). In Barrick, an evenly divided court affirmed a ruling issued by an en banc panel of the Superior Court, and held that all communications between an attorney and his testifying expert were shielded from discovery by the attorney work-product doctrine.

Could Attorneys Be Replaced by Robots in the Future?

By Joseph Fantini |

In the not too distant future, will robots be capable of performing the jobs of the vast majority of the readers of this article? A recent study performed by The Boston Consulting Group, "The Shifting Economics of Global Manufacturing: How a Takeoff in Advanced Robotics Will Power the Next Productivity Surge," predicted that by 2025, the percentage of manufacturing jobs performed in the United States by automated "robots" will increase from the current 10 percent to 25 percent.

Charles F. Forer

Can Arbitrating Parties Seek Instructions From the Court?

By Charles F. Forer |

It was a very complicated dispute. The parties threw out words like "unamortized," "depreciation," "EBITA" and "capital improvements." Bob's head was spinning. At least he had the foresight to convince the other side jointly to retain a certified public accountant to determine the "unamortized cost of tenant's improvements according to the terms of the lease." The parties agreed the accountant's decision would be "final and binding." It all sounded like an arbitration to Bob. That made him comfortable.

Is Deletion of a Key Document After Notice Spoliation?

By Michael T. Murphy |

A recent spoliation sanctions decision from the Eastern District of Pennsylvania shows that reasonableness, not perfection, is the standard with respect to document preservation obligations. That decision, by U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania, found that an insurance company's automated deletion of a key document pertaining to a notice of the termination of a written insurance policy four days after it received a claim on that policy did not constitute spoliation.

Enforceability of Arbitration Clauses in Engagement Agreements

By Aya Salem |

Often said to be a more cost-effective method for litigating cases, many law firms and attorneys are now including arbitration clauses in their attorney-client contracts and engagement letters. A look at recent cases dealing with the enforceability of arbitration clauses shows that while arbitration itself may be cost-effective and straightforward, litigating the legality or applicability of arbitration clauses can prove time-consuming and expensive. Certain considerations, however, can help reduce that cost and time.

Will Sylianteng

Five Predictions for Litigation in 2015

By Will Sylianteng |

As this year comes to a close, law firm leaders will prognosticate about what trends will affect their bottom lines in 2015. Accordingly, this is the perfect time to do a little prognosticating of my own, and to present five predictions of trends that will affect litigation firms in 2015.

gavel

A Look at Past, Present and Future of Pelvic Mesh Litigation

By Shayna T. Slater |

The transvaginal mesh litigation has been ongoing for several years now but the end may be in sight (or at least visible with a telescope).

Charles F. Forer

Can an Arbitrator Raise the Statute of Limitations Sua Sponte?

By Charles F. Forer |

The answer to Bob's arbitration demand included a laundry list of affirmative defenses: waiver, estoppel, license, statute of frauds, immunity, release, statue of limitations, duress, accord and satisfaction, laches, res judicata, and so forth. Didn't the respondent's lawyer read the demand? How does the statute of frauds apply in a case where the claimant seeks relief under a contract that both parties indisputably signed? And the respondent is a Fortune 500 company. Can it claim "duress" with a straight face? Bob scratched his head and chalked his adversary's "strategy" up to habit. Bob figured his adversary copied and pasted the same affirmative defenses into every answer no matter what the arbitration demand said.

Abraham J. Gafni

Explaining Waiver of Court Trial in Arbitration Agreements

By Abraham J. Gafni |

When an agreement provides for arbitration, what language waiving access to the courts will be enforceable, particularly when one of the parties may be unsophisticated?

Adverse Event Letter: What Is It and What Is Its Significance?

By Stephen J. Pokiniewski Jr. |

You get a telephone call or email from a potential client advising that he or she or a family member was in the hospital recently and a problem occurred in the course of his or her medical care causing injury or death. You are advised that shortly after the event he or she was given a letter from a hospital representative expressing the hospital's concern for what happened and briefly discussing the event.

Will Sylianteng

Adapting Pleading Practice in the 24-Hour News Age

By Will Sylianteng |

Last month, both traditional and social media were ablaze with quotes from comedian Tracy Morgan in response to Wal-Mart's filed answer in the case Morgan v. Wal-Mart Stores, (2014 DNJ Civil Action No. 14-cv-04388), a case currently pending in the U.S. District Court for the District of New Jersey.

Using Documents to Prepare a Rule 30(b)(6) Witness

By Shannon McClure and Regina Nelson |

When representing a corporation or other organizational entity in federal court, it is not uncommon to be presented with a Federal Rule of Civil Procedure 30(b)(6) deposition request. There are many issues to consider when presented with this type of deposition notice.

gavel

Fifth Circuit Offers Guidance on Corrective Disclosures

By Peter J. Kreher and Frank P. Trapani |

In Public Employees' Retirement System of Mississippi v. Amedisys, the U.S. Court of Appeals for the Fifth Circuit offered important guidance on how to evaluate whether alleged corrective disclosures meet the standard for pleading loss causation established by the U.S. Supreme Court in Dura Pharmaceuticals v. Broudo. This article describes the court's analysis and discusses the implications for plaintiffs and defendants in securities fraud cases.

Charles F. Forer

Blocking the Use of Mediation Documents in Litigation

By Charles F. Forer |

Bob prepares intensely for mediation. He spends a lot of time preparing his client so the client's "extemporaneous" remarks in joint session send a strong message to the other side and suggest creative ways to settle the dispute.

gavel

Choosing Mass Tort Litigation Isn't for Every Practitioner

By Melissa Fry Hague |

As counsel from both sides of the aisle look to diversify practice areas in an ever-competitive landscape, the realm of "mass tort" has an appealing ring to it for those who have never practiced in it before.

U.S. Securities & Exchange Commission building in Washington, D.C. August 21, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Court Affirms Importance of Private Remedies for Insider Trading

By Peter J. Kreher and Frank P. Trapani |

In Kaplan v. SAC Capital Advisors, --- F. Supp. 2d ---, (S.D.N.Y. Aug. 13, 2014), the U.S. District Court for the Southern District of New York addressed several important questions regarding the remedies available under the federal securities laws for private plaintiffs injured by insider trading. This article reviews three key aspects of the court's opinion and discusses their implications.

Kenneth Racowski

Split of Authority on Strict Liability and Implied Warranty Claims Resolved

By Kenneth L. Racowski |

Two federal district court decisions issued this summer have brought clarity to the question of whether Pennsylvania law bars strict liability and implied warranty claims against pharmaceutical and medical device manufacturers.

Supreme court building in Washington DC, USA.

Will the Supreme Court Take a Stand on Standing in BP Case?

By Abby L. Sacunas and Michael Melusky |

It is axiomatic that to certify a class, plaintiffs must show all members satisfy Article III standing and Rule 23 requirements. While federal courts "do not require each member of a class to submit evidence of personal standing, a class cannot be certified if it contains members who lack standing" to pursue the claim(s) asserted, according to Halvorson v. Auto Owners Insurance.

Abraham J. Gafni

Ruling Shows Difficulty Establishing Arbitrator Partiality

By Abraham J. Gafni |

Unlike judges, arbitrators are generally selected either by the disputants themselves or through a party-approved process. In such circumstances, it might be imagined that both partiality and correctness of decision would be subject to close judicial scrutiny. In fact, reviewing courts will rarely vacate arbitrators' awards on these bases.

A New Look at the Litigation Privilege in Asbestos Case

By Adrianne Walvoord Webb |

In a unanimous, precedential—and exceptional—opinion issued last week in Williams v. BASF Catalysts LLC, No. 13-1089 (3d Cir. N.J. Sept. 3, 2014), the U.S. Court of Appeals for the Third Circuit partly overturned the U.S. District Court for the District of New Jersey and reinstated the fraud and fraudulent concealment claims for asbestos victims and their families in a case against BASF Catalysts LLC, the world's largest chemical maker. Factually speaking, asbestos victims still have a claim against BASF. Emotionally speaking, this decision is a powerful wake-up call for lawyers who take creative license in stretching, and manipulating, legal privileges beyond the point that ethics and the law allows.

Will Sylianteng

Identifying and Preventing Scorched-Earth Litigation

By Will Sylianteng |

As attorneys, we would like to believe that we are members of a civilized and high-brow profession. And why shouldn't we? Our clients bicker, fight and can't stand each other. Then, they hire us to civilly negotiate their claims in their stead, and authorize us to take the case to trial only if those negotiations fail.

Faced With a Page Limit? It's More an Opportunity Than a Limit

By Bart D. Cohen |

Oft-quoted humorist Will Rogers said "the minute you read something that you can't understand, you can almost be sure that it was drawn up by a lawyer." We have since made ourselves far more comprehensible to laypeople. But even most laypeople can achieve comprehensibility in their writing. Where choosing words carefully is an integral part of our practices, we might aspire to a higher standard—concise comprehensibility. But there are still among us too many brevity-challenged litigators, which is why courts impose page limits.

Larry E. Coben

Pennsylvania's Approach to Joint and Several Liability

By Larry E. Coben |

In an article published in the Law Weekly on July 21 titled "Deep Pockets Gone With Joint and Several Liability Repeal," Max Mitchell reviewed changes made in 2011 to the comparative negligence statute, 42 Pa. C. S. Section 7102 (2011), and interviewed several practicing attorneys who provided their views that these amendments may have dire consequences for economic recovery by consumer victims against multiple tortfeasors.

Charles F. Forer

Are Parties Entitled to Using Impartial Arbitrators?

By Charles F. Forer |

What is an "independent" arbitrator if not an "impartial" arbitrator? The Texas Supreme Court had no difficulty answering this question. It said "independent" means only the arbitrator could not be employed by or otherwise under the control of one of the parties.

Lawyers Have Responsibility to Exemplify Distraction-Free Driving

By Joel Feldman |

Texting while driving is illegal in Pennsylvania. There is currently no other activity involving the handheld use of electronic devices that is illegal in Pennsylvania, but that does not mean that use of these devices while driving, for purposes other than texting, is safe. As lawyers, we are busy, trying to be as productive as we can, and often are traveling in our cars. It is not just teens, our children, who seek instant access and responses. Our cars can become extensions of our offices and many lawyers will drive while distracted, texting, reading or sending emails, or accessing the Internet on cellphones. As lawyers, parents and leaders in our communities, we have an obligation to drive safely and minimize distractions, setting an example for others to follow.

Dave Dambreville

The Inconvenient Truth About Forum Non Conveniens

By Dave Dambreville |

As our nation's economy continues to grow globally, lawsuits involving international parties will rise accordingly. For the courts of Pennsylvania, this means that more cases will require an inquiry as to whether a foreign forum is more appropriate for hearing a given case.

Peter

New Standards Announced for ERISA Company Stock Cases

By Peter H. "Tad" LeVan Jr. |

In the final week of its term, the U.S. Supreme Court issued the opinion of Fifth Third Bancorp v. Dudenhoeffer, --- U.S. --- (June 25, 2014), an important decision defining the standard of care that the Employee Retirement Income Security Act of 1974 (ERISA) imposes on certain plan fiduciaries. While failing to generate the media coverage of other hot-button opinions the court issued that week, the impact of Fifth Third to ERISA practitioners cannot be overstated: It fundamentally changed the legal landscape of ERISA company stock cases and will have far-reaching effects on ERISA jurisprudence for years to come.

Third Circuit Rules Debtor Need Not Validate Debt Pre-Suit

By Peter J. Kreher and Frank P. Trapani |

In a recent decision, the U.S. Court of Appeals for the Third Circuit addressed an important issue regarding the Fair Debt Collection Practices Act (FDCPA). In McLaughlin v. Phelan Hallinan & Schmieg, -- F.3d --, (June 26, 2014), the court addressed whether a consumer must first seek "validation" of a debt under the FDCPA as a prerequisite to filing a lawsuit. This article reviews the FDCPA and the court's decision, which held that debtors may now sue under the FDCPA without first attempting to have a debt collector validate a disputed debt, and discusses the implications of the court's decision.

Should Arbitration Agreements Fix the Time for the Award?

By Abraham J. Gafni |

A desire for the speedy resolution of a dispute often impels parties to opt for arbitration instead of court trial. This expectation is based upon the likelihood of an earlier hearing date, proceedings involving less restrictive rules of evidence and procedure, and finality of an award that is typically non-appealable.

Enhancing the Mediation Process With Early Ex Parte Calls

By Harrie Samaras and Judy Weintraub |

Mediated settlements are often achieved through a series of sessions with varying lengths and formats (e.g., in-person, phone, email, videoconference, or a combination of these). The ex parte call is just one of these sessions. Comparatively short in time, it can yield potentially large returns.

Young Lawyers: It Pays to Ask 'Why' When Doing Your Work

By Michael Schafle |

Associates, and some partners, often receive assignments without much guidance from supervising attorneys. Such is the nature of a busy litigation practice and is the status quo of life in most law firms. Emails or personal requests to "cover this deposition," "complete that motion," or "retain this expert" are the norm. Frequently, these tasks are viewed as nothing more than finite assignments where a second thought is not given to them after they are completed. However, viewing these tasks as an end themselves and not as a means toward a more complete end or goal can be detrimental to one's practice both in terms of quality of work and sacrifice of precious time. To cure this shortsighted approach to the task-oriented nature of associate practice, I find that it is always important to ask the most simple of questions regarding your work: "Why?"

Charles F. Forer

Disputing Whether the Parties Agreed to Arbitration

By Charles F. Forer |

Bob is consistent and unwavering in his faith about all things he finds important. Take arbitration. Sure, he concedes, you give up your right to a jury trial and to appellate review of legal errors, no matter how glaring. But you get so much in return.

Asher Brooks Chancey

Replacing the Collateral-Source Rule With Paid or Payable

By Asher Brooks Chancey |

On April 1, the "individual mandate" feature of the Patient Protection and Affordable Care Act (also known as Obamacare) went into effect. We are now in a new era in which Americans are required to have health insurance, and the failure to do so is a violation of law.

Abraham J. Gafni

Will a Court Ever Order Discovery in Aid of Mediation?

By Abraham J. Gafni |

Discovery disputes are among the most common problems presented to courts. These, however, would not appear to be of particular concern when voluntary mediation is involved. Generally, parties who have agreed to mediate also recognize that success is based in great part upon an exchange of information that will allow for a proper assessment of the case. Moreover, when a question arises as to what disclosures are appropriate, the mediator will often assist the parties in resolving this issue.

Madeline M. Sherry and Stephen J. Finley Jr.

Work-Product Privilege Outweighs Broad Expert Discovery

By Madeline M. Sherry and Stephen J. Finley Jr. |

In Barrick v. Holy Spirit Hospital, 2014 Pa. LEXIS 1111 (Apr. 29, 2014), a divided Pennsylvania Supreme Court left in place a decision of the Pennsylvania Superior Court creating "a bright-line rule denying discovery of communications between attorneys and expert witnesses."

Dave Dambreville

Interpretation of Rule 1006 Expands Plaintiffs' Venue Options

By Dave Dambreville |

The choice of venue is a key strategic question in any litigation. In fact, there are few choices more important than that of determining where a lawsuit will be tried.

Congress

New Bill to Bring Changes to Medicaid Lien Recoveries

By Joshua Cohan |

Legal practitioners are well versed in the difficulties of resolving a lawsuit. One source of frustration in particular is the administrative burden of satisfying both governmental and private liens. In personal injury lawsuits, plaintiffs attorneys routinely deal with the problematic task of resolving Medicaid liens for their clients. Plaintiffs and government agencies regularly dispute what portion of a third-party liability settlement or award the state should receive when the state asserts its lien.

Judy Weintraub and Harrie Samaras

Training Corporate Business Managers on Dispute Resolution

By Judy Weintraub & and Harrie Samaras |

One of the largest time drains of corporate management today is dealing with disputes, whether internal or external to a company. Handling disputes can take as much as 30 percent of management time. Companies can significantly reduce this lost time by training their managers in two related areas: dispute resolution options and techniques. Understanding dispute resolution options or alternatives to litigation (ADR) can improve a manager's ability to manage dispute risks and to make more effective decisions about how to manage disputes that arise.

Joseph M. Kelleher

Revised ICDR International Arb Rules: What Counsel Should Know

By Joseph M. Kelleher |

The International Centre for Dispute Resolution (ICDR) was established in 1996 as the international arm of the American Arbitration Association (AAA). It is by far the best-known international arbitration institution of domestic origin and has reportedly outpaced peer institutions abroad in terms of caseload. Earlier this month, the ICDR announced revisions to its International Arbitration Rules, which are provisionally set to go into effect next month.

Early Identification of Trade Secrets Is the Best Defense

By Kenneth Racowski |

Trade-secret litigation poses a problem distinct from other types of intellectual property litigation. In litigation over patents, copyrights and trademarks, the asserted intellectual property is publicly filed and its specific contours are clearly identified.

Emile Ashe

Lessons I've Learned While Being a First-Year Associate

By Emily Ashe |

I write this article having officially completed, or as I might call it, survived, my first year as an associate at a law firm. Needless to say, it has been a tough year, full of change, hard work, and most of all, learning.

Charles F. Forer

Seeking Arbitrator Disqualification Before Arbitration Award

By Charles F. Forer |

Several months ago, Bob discovered an arbitrator in one of his cases had a business relationship with the adverse party. Bob was smart enough to know the arbitrator probably would be partial to the adverse party.

Shannon McClure Roberts and Molly Campbell

Proportionality to Replace Expansive Discovery in Rule 26(b)(1) Amendments

By Shannon McClure Roberts and Molly Campbell |

The proposed amendments to the Federal Rules of Civil Procedure, and specifically Rule 26(b)(1)'s proposed proportionality language, have been the source of much debate during the past year. The period for public commentary on the proposed amendments is now closed.

Madeline M. Sherry and Stephen J. Finley Jr.

Waiver of Attorney-Client Privilege Is a One-Way Street

By Madeline M. Sherry and Stephen J. Finley Jr. |

The attorney-client privilege continues to be a frequently litigated issue in Pennsylvania. In 2011, the Pennsylvania Supreme Court decided Gillard v. AIG Insurance, 15 A.3d 44 (Pa. 2011), which affirmed that the attorney-client privilege is a "two-way street" and confirmed that all communications between an attorney and the client are privileged.

Asher Brooks Chancey

A Nonbinding but Persuasive Foundational Text in State Court

By Asher Brooks Chancey |

More than 20 years have now passed since U.S. District Judge Robert S. Gawthrop III of the Eastern District of Pennsylvania handed down the seminal opinion on attorney conduct during depositions in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and while its advices and admonitions remain instructive to this day, the impact of the decision upon attorney conduct in Pennsylvania is up for debate.

Abraham J. Gafni

When Do Superseding Contracts Impact Right to Arbitrate?

By Abraham J. Gafni |

Readers of this series on ADR in The Legal over past years have undoubtedly been struck by the strong presumption in favor of the arbitrability of disputes under both the Federal Arbitration Act (FAA) and the decisions of state courts.

Stephen J. Pokiniewski Jr.

When Are Physicians Liable for Injuries to Nonpatients?

By Stephen J. Pokiniewski Jr. |

Under Pennsylvania law, a physician may be held liable only under very limited circumstances for injuries sustained by nonpatients.

Charlotte Thomas

Grimes: Another Look at Reliance and Loss Under Pa.'s UTPCPL

By Charlotte E. Thomas |

The Pennsylvania Supreme Court is taking another look at justifiable reliance and "ascertainable loss" under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL).

Will Sylianteng

Does Daimler Mark the End of Forum Shopping?

By Will Sylianteng |

Last month, if you had asked attorneys on the streets of Philadelphia whether they thought an action could be brought against Mercedes-Benz USA, the American distributor of Mercedes vehicles in the United States, in a Pennsylvania court for conduct occurring outside the state, most would have said yes. Last month, they probably would have been right, as Pennsylvania courts would have likely exercised jurisdiction over MBUSA based upon the substantial and continuous business MBUSA conducts every day in the state.

Formulating a Mindset to Achieve More Effective Arbitrations

By Harrie Samaras and Judy Weintraub |

While litigation and arbitration share many similarities, they also differ in several fundamental respects. With its streamlined procedures, arbitration offers significant time and cost efficiencies, as well as confidentiality, flexibility, less formality and greater control.

Miriam Barish

Landowners' Duty to Provide Security as Crime Increases

By Miriam Barish |

Violent crime is on the rise nationally in the United States, and is most prevalent in big cities, including Philadelphia.

Are Non-Appealability Clauses in Arbitration Effective?

By Charles F. Forer |

Bob knows arbitration can be a quick process. One impediment: those darn appeals. Even when he wins at arbitration (and he occasionally does win), Bob and his client still have to face petitions to vacate the arbitration award.

Are There Restrictions on the Arbitrator Serving as Mediator?

By Abraham J. Gafni |

The different roles of arbitrators and mediators are well recognized in dispute resolution.

Application of Truth Defense Not Always Straightforward

By Steven T. Voigt |

Even truthful statements can sometimes create a misleading impression. Take these two sentences as an example: "Company A's decisions were made in New York. Banker B, who represents Company A, is located in New York." Do these two sentences imply a different meaning together than they do apart? How about this statement: "The apple that he sold was not completely rotten." Is this a truthful statement if the apple was pristine?

Reviewing the Revised AAA Commercial Arbitration Rules

By Harrie Samaras and Judy Weintraub |

The American Arbitration Association (AAA) has revised its Commercial Arbitration Rules. The revised rules, which apply to any claim filed on or after Oct. 1, 2013, are designed to enhance significantly the efficiency of the arbitration process. For a full set of the rules, visit the AAA's website at www.adr.org.

Proposed Federal Rules Will Discourage Document Dumps

By Michael Murphy |

A document dump—where a party responds to a document request by unfairly producing as many debatably responsive documents as possible in an effort to bury the opposition in paper—is one of the oldest of litigation discovery gamesmanship tricks.

When Are Arbitration Agreements Preempted by the FAA?

By Abraham J. Gafni |

Decisions of the U.S. Supreme Court in recent years have discouraged many parties from seeking to invalidate arbitration agreements on the ground that they are unconscionable under state law.

Joseph Fantini

Predictive Coding: Revolutionary or a Fading Trend?

By Joseph Fantini |

As members of the legal community continue to strive to provide the best possible value and service to their clients, solo practitioners and international law firms alike have recently begun turning to predictive coding in an attempt to increase productivity while decreasing the costs associated with document review and production.

At What Point Can You Seek to Disqualify an Arbitrator?

By Charles F. Forer |

Bob's client sold a portion of its business to Rabbit Corp. At Bob's urging, the client agreed to arbitrate any claims arising out of the sales agreement. A claim arose shortly after the sale.

Arbitration Clause Not Applicable to Wrongful-Death Claim

By Shayna Slater |

The mandatory arbitration clause: a term that sends chills down the backs of many plaintiff nursing home attorneys. If you handle nursing home cases you have surely been faced with mandatory arbitration clauses and have had to explain to families why it is unlikely that their case will be heard in a court of law.

Availability of Summary Judgment for 'Serious Injury'

By Michael Heyden |

The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) created the "limited tort" option in this commonwealth, which limits a person who elects for that option from recovering non-economic damages, with certain exceptions.

Punitive Damages for Electronic Device Use While Driving

By Patrick McDonnell and Kailee Farrell |

Today, drivers increasingly utilize electronic devices while driving. While in the past a driver's attention may have been distracted by the radio, irritated children in the back seat, snacks and bulky paper maps, modern travelers confront a whole array of potentially distracting electronic devices.

The Vital Role of Graphics in the Courtroom

By Ron Kurzman |

Jurors expect information to be presented in a way that accommodates them. And with today's jury groups being composed of more Generation X and Y-ers - two groups that thrive in an environment where news and information are presented in a fast-paced, brief manner - it is imperative that information in the courtroom follows suit, or it will be lost on the audience.

Rules of the Game: Tortious Interference With Contract

By Kevin P. Allen |

Hardball tactics are common in business. Often, the law not only does not prohibit such tactics, it encourages them in the name of vibrant competition and efficiency. However, there are lines that cannot be crossed, at least not without creating risks of liability.

Mock Arbitrations: A Way to Fine Tune Your Presentation

By Harrie Samaras and Judy Weintraub |

You could have the greatest case, but if you don't present it effectively to the arbitration panel, you might not attain the results you want—or that your client needs.

Understanding Cost Accounting to Determine Lost Profit

By William E. Harris |

In many commercial disputes, the proper measure of damages is lost profits. Easily stated, the loss would be the profit that the injured party would have earned "but for" the alleged wrongdoing of the defendant.

Do Arbitrators Have Power to Exclude Relevant Evidence?

By Abraham J. Gafni |

Several articles in this ADR series in The Legal have pointed out that in agreeing to arbitration, counsel must consider whether the hearing is to be conducted pursuant to rules of evidence. Often ignored, however, is the extent to which the arbitrator will be constrained by such rules.

Preparing for Depositions in the New Age of Technology

By Melissa Fry Hague |

Cases these days seem to involve more paper than ever. While detailed documentation may generally be a good thing, it has also resulted in an additional seat at the deposition table just for all the documents.

Increased Protection for Expression in Public Schools

By John E. Freund III and Keely Jac Collins |

In B.H. v. Easton Area School District, the Third Circuit decided that, absent disruption, public school principals may not restrict "plausibly political" student speech or speech with a social message, unless the language is "plainly lewd." This article explains the importance, including the controversy, of the B.H. holding.

Does the Statute of Limitations Apply in Arbitration?

By Charles F. Forer |

Bob's client, Roger, came to Bob with a tale of woe. More than five years ago, Roger entered into a service contract with Alan. Roger completed the requested work, Alan paid the amount due, and the matter was over — seemingly.

'Proportional' Discovery Proposed for Fed. Civil Cases

By Joseph F. Rich |

The proposed amendments to the Federal Rules of Civil Procedure present not only a significant shift in the scope of discovery allowed in federal court, but also would usher in a new era of other limitations on discovery.

Are Time and Cost Efficiencies in Arbitration a Fantasy?

By Harrie Samaras and Judy Weintraub |

In many cases, the distinction between litigation and arbitration has become blurred as more litigation practices are infused into arbitration. Clients thus lose the cost and time savings that they sought by selecting arbitration in the first place.

Flexibility of Arbitrators in Shaping Creative Remedies

By Abraham J. Gafni |

Increasingly, attention has been drawn by courts and commentators to arbitrators' authority and the scope of awards they may issue.

But He Asked Me First

By William MacMinn |

In Marino, Robinson & Associates v. Robinson, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. entered summary judgment dismissing the case against a defendant who allegedly violated a nonsolicitation clause.

Premises Liability Claims That Occur on Recreational Areas

By Christopher Marzzacco |

Summertime. Time to watch a ballgame, take a walk in the park or a swim in the lake. Most of these activities can be enjoyed on public parks and on public lands. Unfortunately, sometimes visitors to these areas suffer injuries while engaging in these common summertime activities. If an injury was caused by a dangerous condition on the property, how does an injured victim overcome sovereign, local and the recreational use of land and water immunities afforded governmental entities to successfully make a claim for damages? If injured on property owned by a local or state agency, proving negligence and recovering damages is truly an uphill battle.

Right Time to Muddy the Waters Over Lien Stripping, Again

By Greg T. Kupniewski |

Recent news articles have proclaimed that housing prices are beginning to rebound. Even hard-hit locations like Las Vegas are reporting rising home values compared with last year. Despite this very welcome turnaround, many homeowners are not out of the financial woods yet.

Publicity Rights of Athlete Violated by Video Avatar

By Michael I. Rudell and Neil J. Rosini |

The right of publicity has traced a long arc since Hugo Zacchini, the human cannonball, was shot from a cannon in 1972. That year, a TV news report included Zacchini's entire act from ignition to landing without his permission; Zacchini then sued claiming that his right of publicity had been violated.

What Do You Need to Ask About the Judge Assigned to Your Case?

By Michael Eisenbaum |

Do you know the answer to the question posed above? If you don't, you could be in for unpleasant surprises as your lawsuit progresses and in the ultimate judgment issued by the court.

Court Extends Constitutional Protections to Land Owners

By Marc B. Kaplin and Pamela M. Tobin |

Those of us who represent property owners are no strangers to dealing with local governments that demand exorbitant monetary concessions as a condition to approving our clients' land-use applications, including where the exaction has virtually no demonstrable connection with the proposed development.

Tips for Dealing With New Technology in Jury Trials

By Howard D. Scher |

Courts have been dealing with many of the challenges at the forefront of the social media debate for centuries. These include determining how to make sure jurors aren't prejudiced by outside information and how much litigators can learn about jury members prior to voir dire. These aren't new questions or challenges. They’re just being brought into sharper focus.

Top 10 Mistakes to Avoid Making in Mediation Advocacy

By Harrie Samaras and Judy Weintraub |

You are walking out of the bar association building when you hear your name. Turning, you recognize Jane, a senior litigator in the firm you recently left to start your own practice. She catches up to you and asks how things are going. You worked with Jane on several cases and respect her highly, so when she invites you to lunch, you accept.

Drafting Exculpatory Releases After Chepkevich and Tayar

By Nancy Green |

The Pennsylvania Supreme Court has decided two cases important to business owners and operators of recreational programs and facilities.

Taking a Proactive Approach to Damages Discovery

By William E. Harris |

In my 20-plus years of assessing damages in personal and business disputes, I have been involved in many different types of cases. In some cases, discovery takes a scorched-earth approach, and in others, it takes "a scorched earth, and then some" approach.

Consumers Send Thank-You Notes for Class Action Recovery

By Michael D. Donovan |

The Chamber of Commerce, certain members of the U.S. Supreme Court and other ersatz "tort reformers" love to bash class actions and the lawyers who file them. But what do class action consumers say when they recover from one of the very few class cases to actually go to trial? Judging from the letters in one such case, it is a resounding "thank you."

Demystifying Lack of Consistent Pre-emption Rulings

By Adrianne Walvoord Webb |

From litigating pharmaceutical and medical device cases to litigating worker safety and motor vehicle cases, pre-emption is an issue.

Difference Between Post-Judgment, Post-Award Interest

By Charles F. Forer |

Lawyers periodically select Bob as a neutral arbitrator. Bob knows he has only one shot as the arbitrator. Something about the functus officio doctrine that limits his ability to revisit issues once he makes his final decision. S

Untangling Student, Third-Party Speech in Public School

By Keely Jac Collins |

In K.A. v. Pocono Mountain School District, 710 F.3d 99 (3d Cir. 2013), the U.S. Court of Appeals for the Third Circuit decided, as a matter of first impression, that the advertising material of third parties constitutes "student speech," if distributed by a student in the public school.

Are There Limits to an Arbitrator's Award of Interest?

By Abraham J. Gafni |

Parties often agree to arbitration assuming that the process is the functional equivalent of a nonjury court trial and differs from it only in that it allows them to select their judge, time and place of hearing.

Employers Vicariously Liable for Distracted Driving

By Michael Schafle |

Distracted driving due to mobile phone use while behind the wheel is a dangerous and prevalent problem. In 2010, nearly 20 percent of all motor vehicle accidents were attributed in some way to distracted driving.

Taking Steps to Reduce the Cost of Workplace Conflict

By Harrie Samaras and Judy Weintraub |

Workplace conflict can be very expensive for businesses — and that expense has been increasing over the last 10 years, due to higher jury verdicts, attorney fees and other costs, as well as an increase in the number of these conflicts. Businesses can reduce their liability in this area by taking steps to prevent conflicts before they arise, and to resolve them as early as possible, before they grow into full-blown disputes.

Can Judgment on Your Arbitration Award Be Entered in Court?

By Charles F. Forer |

Bob may be interested in the theoretical issues of the law. His clients? They want results. But they do not want to pay a bundle to get those results.

Using the Sudden Medical Emergency Defense in Pennsylvania

By Stephen J. Pokiniewski Jr. |

Every so often Pennsylvania appellate courts hand down a decision that addresses several novel and/or uncommon legal issues in one decision. When the courts render such a legal gem, the legal community should be aware of the decision. One such appellate decision is the state Superior Court's opinion in the recently decided case of Shiner v. Ralston, No. 1791 MDA 2011, (Pa. Super. Feb. 22, 2013). In Shiner, a panel of the Superior Court addressed several interesting legal issues: (1) the distinction between the "sudden emergency doctrine" and the "sudden medical emergency defense"; (2) the defendants' burden of proof in order to obtain summary judgment where they seek judgment based upon an affirmative defense; (3) the proof required for expert testimony where the party offering the testimony does not have the burden of proof; and (4) the moving party's ability to obtain summary judgment under the Nanty-Glo rule where it relies upon its own witnesses' testimony.

Questioning Cy Pres Awards After Class Action Settlements

By George J. Krueger and Lauren Winchester |

Consider the following scenario — your business is one of many sued in a class action lawsuit for allegedly conspiring to overcharge consumers of baby products. After five years of costly litigation, all of the defendants decide to settle.

An Examination of Claimed Lost Social Security Benefits

By William E. Harris |

In personal injury and wrongful death matters, economic losses associated with a loss of earnings capacity and fringe benefits are claimable. Fringe benefits are typically a category of offerings by an employer to an employee for items other than regular salary and wages. The Bureau of Labor Statistics tracks various fringe benefit costs by employers that include (1) legally required costs associated with payroll taxes, (2) costs related to supplemental pay for vacation, sick time, bonuses and overtime, (3) insurance benefits, which may include health care coverage or premium payment assistance, group life insurance, disability insurance and unemployment insurance, and (4) retirement and pension benefits.

Considering the Mediation Privilege in Awarding Legal Fees

By Abraham J. Gafni |

To what extent may mediation impact an award of attorney fees as part of the costs in litigation?

Discussion of Removal Issues Arising From Arbitration Cases

By Patrick McDonnell and John McConnell |

Compulsory arbitration cases historically posed problems for diverse defendants seeking to remove a personal injury case to federal court.

Using Early Case Assessment as a Tool for Triaging Disputes

By Harrie Samaras and Judy Weintraub |

When a dispute first surfaces, the extent of the risk to an organization and the level of resources required to resolve it may not be readily apparent.

Can Sanctions Be Applied for Bad Faith in Court-Ordered Mediation?

By Charles F. Forer |

Bob has had it with adversaries who act in bad faith in court-ordered mediation and get away with it. Last week, Bob and his client went to a court-ordered mediation session. Bob's client, the plaintiff in a commercial dispute, sought seven-figure damages arising out of the defendant's "shocking" and "ill-considered" breach of contract.

What Neuroscience Can Teach Legal Professionals About Settlement Negotiations

By Jane C. Greenspan |

There is much that the latest developments in neuroscience can teach legal professionals about negotiations. This is particularly true when it comes to how people process information and make decisions. Mediators and lawyers alike can benefit particularly from what neuroscientists have revealed about priming and framing, two potent filtering mechanisms that can either inflame the emotional barriers to settlement or potentially defuse them.

Seven Things a Civil Trial Attorney Learned While Serving as a Juror

By Bonnie M. Hoffman |

Recently, I was selected to serve as juror in a criminal case. Despite my surprise and initial trepidation (I had work waiting for me back at the office), serving as a juror proved to be a terrific learning experience. While serving as a juror in a criminal case, this civil trial attorney learned, from how I felt as well as through my observations of the other jurors, the following seven important things about trying a case that I may not have otherwise appreciated.

Pennsylvania Damages Law: Disregard of Economic Principles

By Samuel J. Kursh and Scott Measley |

In Helpin v. Trustees of the University of Pennsylvania, the Pennsylvania Supreme Court continued its disregard of economic/financial principles and decades of economic data.

Selecting Non-Neutral Arbitrators in a Multiparty Dispute

By Abraham J. Gafni |

Arbitrator selection represents one of the most critical acts undertaken by any party to a dispute. After all, the arbitrator is empowered to render an unassailable decision that is rarely subject to appellate review.

Discoverability of Litigation Hold Notices in Pennsylvania

By Don Foster |

Although there is abundant case law in Pennsylvania discussing remedies available to an innocent party when the other party destroys evidence, there is no Pennsylvania decisional law that addresses the discoverability of "litigation hold" notices from an attorney to his or her client, or of any other communication between attorney and client that addresses the obligation to preserve evidence. This article addresses the growing case law emanating from district courts within the Third Circuit that permit limited discovery of such communications.

Reasonably Determining the Economic Value of a Life

By William E. Harris |

People will tell you that a life is priceless. But in a practical sense, a life has both economic and non-economic value to individuals, loved ones and friends. In the damages world, the value of a life is really a question of economic value.

Aggregate Settlements and Ethical Considerations in Mass Tort Claims

By Marina Corodemus and Renee Henderson |

The past few years have witnessed a sharp increase in the use of the aggregate settlement as the go-to device for globally resolving mass tort claims. However, as with most new devices, the excitement over the novelty can sometimes outpace ethical considerations.

Maximizing Damages: Personal Injury and Wrongful Death Actions

By Larry E. Coben |

When Pennsylvanians are seriously injured or their loved ones die, our citizens turn to attorneys for answers and solutions. Pennsylvania common law guarantees our citizenry a basic right to recover damages for both personal injuries and wrongful death. These very broad civil rights allow injured victims every opportunity to obtain full and fair compensation. Yet, as it turns out, that doesn't always happen. While fair recovery often depends on the facts of a case, attorneys too often neglect some avenues of recovery or choose a methodology to present their client's claim that misses the mark in maximizing recovery.

After the Mediation Session: Where Do You Go From There?

By Judy Weintraub and Harrie Samaras |

This is the 12th and final article in this series on mediation advocacy. The 11th article, "Mediation Advocacy: Preparing to Avoid an Impasse," published December 21, 2012, provided tips on how to avoid and address an impasse.

Arbitrator Unavailability During Arbitration Proceedings

By Charles F. Forer |

Bob knows arbitration does not always save time compared to litigation and that it does not always cost less than litigation. Plus, it may not always be confidential, which is one of its supposed attractions.

Mediation Advocacy: Preparing to Avoid an Impasse

By Judy Weintraub and Harrie Samaras |

This is the 11th article in this series on mediation advocacy. The 10th article, published November 21, addressed the pre-mediation groundwork needed in preparation for signing a terms sheet or a settlement agreement at the end of the mediation session.

Beware of Waiving the Mediation Communications Privilege

By Abraham J. Gafni |

At virtually every mediation, the mediator or counsel advise the clients that mediation communications are privileged, so that parties may feel comfortable in offering concessions or otherwise making statements, as disclosure cannot be compelled in any subsequent proceeding.

Wrongful Birth and Life Claims Under Pennsylvania Law

By Stephen J. Pokiniewski Jr. |

In 1988, the Pennsylvania legislature passed and then-Governor Robert P. Casey signed into law what is now codified as 42 Pa.C.S. Section 8305. Section 8305, in relevant part, sets forth that:

Mediation Advocacy: Taking Aim at Settlement

By Harrie Samaras and Judy Weintraub |

This is the 10th article in this series on mediation advocacy. This article discusses the kind of groundwork counsel should perform to be ready for signing a terms sheet or a settlement agreement at the end of the mediation session.

Getting Away With Fraud During the Mediation Process

By Charles F. Forer |

Bob's client, Allan, was a whiner. Always complaining about his lawsuit. Forever knocking Bob about his inability to end it quickly. Upset that Bob did not apply scorched-earth tactics.

How to Calculate Losses Related to Business Impairment

By William E. Harris |

Calculating damages related to an impaired business can be a difficult task. No one has a crystal ball regarding the future. However, the valuation approach allows for a supportable and hopefully reasonable prediction of what would have happened had an impairment not occurred.

The Art of Using Economical Expert Witness Graphics

By G. Christopher Ritter |

Expert witnesses can be crucial in trials involving highly technical topics, such as banking, technology, engineering, medicine or insurance. Working with your expert to create trial graphics to simplify and illuminate these technical topics is also crucial; without them, even the most attentive jury members may get confused and stop paying attention.

Considering Unavailability When Drafting Arbitration Agreements

By Abraham J. Gafni |

In his article in The Legal Charles Forer explained that if a party to an arbitration agreement retains the right to make a retroactive change, the agreement to arbitrate may be considered illusory and no longer binding.

Is There a Settlement Negotiation Privilege?

By Abraham J. Gafni |

Many of the ADR articles that have appeared in The Legal over the past few years have highlighted the often-blurred understanding in statutes and court decisions of the concept of confidentiality as it relates to mediation.

Overuse of Antipsychotic Medications in Nursing Homes

By Shayna Slater |

The misuse of antipsychotic drugs within the nursing home population is, unfortunately, a common and long-standing practice that puts elderly residents at increased risk of death. Fortunately, this practice has come to the forefront and numerous organizations are implementing policies in order to reduce and/or eliminate it. Reduction in the use of antipsychotic medications within our nursing home populations can not only dramatically reduce costs but it will also result in better quality of care for patients.

The Mediation Session: Tips on Strategy for Caucuses

By Judy Weintraub and Harrie Samaras |

This is the ninth article in this series on mediation advocacy. The eighth article, published August 31, discussed the advocacy strategy for the opening joint session.

Sandy Koufax, Mediation and Working With Experts

By Charles F. Forer |

Bob knows mediation offers many benefits, even if the process does not always lead to a settlement of the dispute. To illustrate these benefits, Bob tells his Sandy Koufax story:

The Mediation: Strategy for the Initial Joint Session

By Judy Weintraub and Harrie Samaras |

This is the eighth article in this series on mediation advocacy. The seventh article, published July 25, discussed the strategic uses of pre-mediation submissions. The article continued a scenario in which the parties, Widgetronics and DesignMetrics, entered into a contract containing a dispute resolution clause and became embroiled in a dispute over Widgetronics' alleged wrongful termination of the contract. During the preliminary conference call with the mediator, the parties and mediator formulated a framework for the mediation session, including the initial joint session. This article provides tips on effective advocacy for that initial session.

Mandatory Mediation: Avoiding Pitfalls by Complying With the Agreement

By Abraham J. Gafni |

Discussion concerning whether to provide for mandatory mediation in commercial contracts generally results in a debate about its usefulness.

Your Income Went Down by How Much?

By Jeff Willoughby |

Forensic accountants are frequently brought in to cases where they are asked to quantify economic damages, based on the alleged acts of one or more parties, or respond to another expert's calculation. One of the first questions to be asked is, "Your income went down by how much?"

The Strategic Use of Pre-Mediation Submissions

By Judy Weintraub and Harrie Samaras |

This is the seventh article in a series on mediation advocacy. The sixth article, published June 29 ("Mediation Preparation: Don't Let the Informality Fool You"), discussed how to prepare for the mediation.

Mediation Preparation: Don't Let the Informality Fool You

By Judy Weintraub and Harrie Samaras |

This is the sixth article in this series on mediation advocacy. The fifth article, published May 18, discussed how to prepare for the preliminary planning meeting with the mediator and opposing counsel.

The Tar Heel State Steps Up Its Fight Against Fraud — Part II

By Marc S. Raspanti, Pamela C. Brecht and James F. Wyatt |

North Carolina's False Claims Act has a more stringent "first-to-file" provision than its federal counterpart. The federal False Claims Act's first-to-file provision is intended to prevent potential relators from filing parasitic suits based on the same allegations that underlie an already pending qui tam suit.

The Tar Heel State Steps Up Its Fight Against Fraud — Part I

By Marc S. Raspanti, Pamela C. Brecht and James F. Wyatt |

Since the passage of the North Carolina False Claims Act in 2009, which became effective Jan. 1, 2010, North Carolinians have had a powerful weapon to combat fraud against their tax dollars and to return these funds to the state coffers. At the time it was passed, North Carolina joined 25 other states and the District of Columbia by enacting its own False Claims Act.

Appropriate Jury Trial Limitations Found in Nursing Home Contracts

By Joel I. Fishbein |

This paper published Shayna Slater's article, "Mandatory Arbitration Clauses: A Sneaky Secret of Nursing Homes," and has agreed to permit this author to respond.

Attorney-Client Privilege: Is There a Fiduciary Exception?

By Denis James Lawler, Daphne Goldman and Mackenzie W. Smith |

This article continues with a discussion of the problems with an uncertain attorney-client privilege and developments regarding a fiduciary exception in the states over the last 10 years.

Attorney-Client Privilege: Is There a Fiduciary Exception?

By Denis James Lawler, Daphne Goldman and Mackenzie W. Smith |

Every lawyer is familiar with the attorney-client privilege. Most, however, have perhaps never encountered what is often referred to as the "fiduciary exception" to that privilege.

Back to the Future: When Safety Equipment Is Sold as an Option

By Larry E. Coben |

Picture this: A person walks into an electronics store and looks at a number of brand new laptops, studying all the features, capacity, speed, screen visibility, etc. After studying about 10 different models, she settles on one that, cost-wise, is in the middle of the pack. The laptop is purchased and our customer goes home, excited to get started with her new gadget. Once home, she plugs it in and gets it open to the startup screen — only to find that the laptop lacks both Internet and printer software. Confused and confounded, our purchaser calls the store and asks: "What is going on?" To which, the sales manager responds: "Oh, you wanted those items? Well, sure, they're optional — but not to worry, as we can install those for an extra charge."

Five Common Mistakes to Avoid During Deposition

By Daniel E. Cummins |

It has been said that cases are won or lost at the deposition stage of the civil litigation process. The deposition represents the one pretrial opportunity to assess the opposing party's demeanor as well as its entire case on a face-to-face basis.

Having Your Cake and Eating It, Too: Illusory Arbitration Agreements

By Charles F. Forer |

To say the least, Bob has run into problems when he represented clients in arbitrations. Not that he ever did anything wrong. Bob attributed the problems to the "system." More precisely, the "arbitration system."

The Mediation's Framework: How to Approach a Preliminary Meeting

By Judy Weintraub and Harrie Samaras |

This is the fifth article in this series on mediation advocacy. The fourth article discussed how to find mediators and how to decide which mediator to select.

To Hire or Not to Hire an Expert on Damages

By William E. Harris |

From a cost-benefit analysis, the defense's total out-of-pocket cost to hire a damage expert in all cases where significant damages are sought would likely not even approach the potential reduced award that could occur in just one case. Think about the $280 million potential savings previously referenced. But even a potential benefit savings of $100,000 would greatly outweigh the cost of an expert in most cases.

Surprise! Attorney Fees and Rule 68, a Trap for the Unwary

By Grant S. Palmer and Michael A. Iannucci |

It is Tuesday morning. Yesterday, your adversary accepted a Rule 68 Offer of Judgment for $5,000 to settle "all claims," which concluded a long, hard-fought federal litigation.

What You Need to Know About Selecting a Mediator

By Harrie Samaras and Judy Weintraub |

This is the fourth article in this series on mediation advocacy. With both parties ready to proceed to mediation, the next step is the selection of a mediator — a key step in the process, as a good mediator will increase the likelihood that the mediation will succeed.

Pretrial Discovery From Non-Parties in Arbitration Under State Law

By Abraham J. Gafni |

What happens in arbitrations where the Federal Arbitration Act is not otherwise implicated or controlling, such as a local construction or accident case? Do arbitrators empowered under state law have the authority to order such pretrial discovery from non-parties?

The Art of Opening Statements: How to Connect With Jurors

By Vitaly Gashpar |

On March 13, at a CLE program hosted by the Association of Business Trial Lawyers, a panel composed of U.S. District Court Judge Charles Breyer of the Northern District of California, Morrison & Foerster's James Brosnahan, Cotchett Pitre & McCarthy's Joseph Cotchett and jury consultant Carrie Mason discussed techniques on delivering the best opening statement.

Ten Ways to Introduce Mediation to Opposing Counsel

By Harrie Samaras and Judy Weintraub |

This is the third in a series of articles about mediation advocacy. The second article discussed a list of factors for evaluating the suitability of mediation for resolving a dispute.

Shocking Increase in Taser Suits Could Be Around the Corner

By Joan Lee |

To Taser or not to Taser. That is the issue raised in a federal lawsuit filed recently against a Hamden, Conn., police officer and the town of Hamden. As more law enforcement authorities are using this so-called stun gun, more lawsuits are likely to follow, experts say.

Affinity Investment Fraud May Lie at Heart of $78.5 Million Suit

By John Pacenti |

Miami real estate millionaire Harvey D. Wolinetz doesn't do business like most tycoons. For him, it's a matter of faith. Deals are made on a handshake.

Motor Vehicle Safety: The Cloud of Pre-emption Has Been Lifted

By Larry E. Coben |

In 2000, the U.S. Supreme Court ruled in Geier v. American Honda Co. that vehicle manufacturers could not be held liable for delaying the installation of air bags for frontal crash protection, despite the fact that since 1973, government regulators had urged car companies to do so.

When Can You Seek to Vacate an Arbitration Award Tainted by Fraud?

By Charles F. Forer |

In my last column, I described how Bob finally got it right, up to a point anyway. In response to a petition to vacate an arbitration award in favor of his client.

Is an Appellate Traffic Jam Ahead? A Guide to Delays on Appeal

By Howard J. Bashman |

I recently noticed that my local cable television provider has a channel devoted to broadcasting highway traffic camera feeds from throughout the area. When I watch the channel during the morning or evening rush hours, I am reminded just how fortunate I am to have an office that is only a short drive from my home.

Is Mediation the Right Choice for Your Dispute?

By Harrie Samaras and Judy Weintraub |

What if a contract lacks a dispute resolution clause? Or perhaps the contract contains a provision that is ambiguous, or one that, for some other reason, may no longer suit the parties' needs. How can parties determine what dispute resolution process to use for their dispute?

Evaluating the Dispute Resolution Clause in Mediation

By Harrie Samaras and Judy Weintraub |

Mediation is a substantially different approach to resolving disputes from litigation or even arbitration.

Mandatory Arbitration Clauses: A Sneaky Secret of Nursing Homes

By Shayna Slater |

A client walks into your office and tells you a horrible story of abuse and neglect his loved one endured in a nursing home. You ask to see the admission paperwork, and as you quickly thumb through it looking for one important document, the client tells you how he wants the nursing home to be held responsible for the unacceptable standard of care.

Pretrial Discovery of Documents From Non-Parties in Arbitration

By Abraham J. Gafni |

Increasingly, parties are looking to arbitration for the resolution of their disputes.

Considering How to Approach Opening Statements in Mediation

By Abraham J. Gafni |

When mediation is discussed, someone invariably questions whether an opening statement by the parties at the initial joint session with the mediator is advisable.

Preparing a Lawyer-Witness for Deposition - and Beyond

By Lisa Blue and Robert B. Hirschhorn |

After working with hundreds of witnesses over the years, we have found that lawyers are some of the most difficult witnesses, because they often think they know it all.

Tips for Putting Together a Trusted, Skilled Trial Team

By Amie Bailey |

Getting ready for trial can be a complex process, but putting your team together doesn't have to be. You have some people on your team that you wouldn't dream of going to trial without, and that's as it should be. However, every trial is different and will require different skills. This means you may need to look outside your firm for specialized expert support, rather than asking the paralegal to also be the graphic designer.

Projecting Wage Growth and Inflation in Today's Economic Climate

By William E. Harris |

On Jan. 25, the Federal Reserve System issued a statement indicating that it currently anticipates economic conditions — including low rates of resource utilization and a subdued outlook for inflation over the medium run — are likely to warrant exceptionally low levels for the federal funds rate at least through late 2014. The federal funds rate is the interest rate at which depository institutions actively trade balances held at the Federal Reserve, called federal funds, with each other, usually overnight, on an uncollateralized basis.

Discograms Are Useful for Establishing Causality and Extent of Damages

By Brandon Swartz |

Understanding the terminology in diagnostic reports and the limitations and advantages of certain diagnostic tests is the focus of this third article in a series.

When Can You Seek to Vacate an Arbitration Award?

By Charles F. Forer |

"Do you ever do anything right when it comes to alternative dispute resolution? How do you keep attracting clients if all you do is make mistakes?"

A Clean Slate: Ways to Ease Stress and Improve Your Practice

By Daniel E. Cummins |

Another new year has come and 11 more months stretch out in front of us until the next one. It's still a clean slate and there is plenty that can be accomplished in the year ahead in terms of reducing stress and improving one's enjoyment and success in the practice of law.

To Evaluate Arguments, Know Diagnostic Testing Technologies

By Brandon Swartz |

My previous article was the first in a series focusing on understanding the terminology in diagnostic reports, and the limitations and advantages of certain diagnostic tests. The first article focused on X-ray and MRI testing.

Is an Attorney-Expert Privilege Developing in Pennsylvania?

By Madeline M. Sherry and Stephen J. Finley Jr. |

In Pennsylvania's state courts, practitioners have long juggled the obligation to provide detailed, comprehensive expert reports in support of their case with their obligation to preserve the protection afforded by the attorney work-product privilege.

The Evolving Landscape of Modern Tort Liability

By Larry E. Coben |

The common law has provided predictability in the products liability system for decades. Despite this historically sound conclusion, proponents of legal reform, intent on reducing unnecessary legal costs and using "predictability" as their mantra, have sought ways to alter this landscape through caps on both compensatory and punitive damage awards, abolishing joint liability, eliminating the collateral source rule, limiting a seller's liability for express warranties or direct negligence, creating comparative fault for product misuse and setting a statute of repose within the ordinary use-life of most products.

Major Changes to Removal Jurisdiction in 2012

By James P. Goslee |

With surprisingly little coverage or commentary, on Dec. 7, 2011, President Obama signed new legislation that will significantly change the rules for removing cases to federal court.

When It Comes to Removal, Timing Is Everything

By Peter J. Gallagher |

Corporate defendants sued in state court often reflexively seek removal to federal court because they believe it is a more fair and efficient forum. In contrast, plaintiffs generally fight removal because they view state court as a friendlier venue.

A Year of Change for Civil Litigation

By Daniel E. Cummins |

My past few columns have provided year-end reviews on the topics of general civil litigation, automobile accident law and bad-faith litigation.

Justices Take a Step Back on Pre-emption Power Under the FAA

By Neal R. Troum |

The holding of KPMG v. Cocchi, a recent U.S. Supreme Court per curiam opinion, is unremarkable enough. Arbitrable claims must be sent to arbitration, even where nonarbitrable claims are present. The Supreme Court held just that more than 25 years ago in Dean Witter Reynolds Inc. v. Byrd.

Tread Lightly With Footnotes: Seven Tips for Effective Usage

By Martin J. Siegel |

Footnotes can be distracting. But avoiding them entirely is not the answer, writes Martin J. Siegel. Used incorrectly and excessively, footnotes tax the reader and reflect poor writing. Used properly and sparingly, they add to a brief's overall effectiveness. He offers seven lessons for footnotes done right, starting with "Don't. They should be the rare exception, not the rule."

Rule Changes Alter State Civil Litigation Landscape

By Daniel E. Cummins |

In civil litigation, this has been a year of big changes and shifts in how personal injury matters are to be played out in Pennsylvania courts.

Boundaries Key When Handling Clients With Personality Disorders

By James Dolan |

In contemporary law practice, particularly in litigation, the expert witness in psychology — psychiatrists, forensic psychologists, psychotherapists and so on — increasingly is a member of the teams on opposite sides of a courtroom.

Four Keys to Preparing and Conducting Successful Voir Dire

By Lisa Blue Baron and Robert B. Hirschhorn |

For many lawyers, jury selection often is the most difficult component of a jury trial. By their very nature, trial lawyers are control freaks. Jury selection is unlike carefully scripted opening statements, closing arguments, and direct and cross-examination questions.

How Lawyers Can Show Appreciation for Jurors' Service

By G. Christopher Ritter |

The 10-day trial of the Chandra Levy murder captivated Americans just as much as her disappearance had. The story had all the drama of a best-selling crime novel, after all -- the beautiful and ambitious intern; the love affair with a powerful congressman; her disappearance one spring morning; the discovery -- a year later -- of her remains on a deserted hillside; and then the identification of a suspect -- eight years later -- who had attacked two other female joggers in the same area at the same time Levy disappeared. The case triggered not only a media frenzy, but also heartfelt outpourings of compassion for the bereaved family.

The Accidental Tourist: Navigating Legal Pitfalls in Travel Injury Litigation

By Mark J. LeWinter and Jeffrey S. Downs Special to the Legal |

According to the U.S. Office of Travel and Tourism Industries, each year roughly 40 million U.S. residents travel overseas, as well as to destinations like Canada and Mexico.

The Pa. Damages Framework for Wrongful Death Act, Survival Act

By William E. Harris |

Calculating the economic loss to an estate and its survivors is done differently in most states. Jurisdictional statutes and case law provide the framework for how this calculation is made in a particular venue

Does the Mediation Privilege Apply in Legal Malpractice Cases?

By Abraham J. Gafni |

In August, The Legal Intelligencer reported a federal court opinion in which the defendant law firm in a legal malpractice suit in state court requested the deposition of the chief mediator of the United States Court of Appeals as part of its defense.

Active Participation Leaves Clients Happy With Outcome, Counsel

By Jeff Kichaven |

Excuse me, counsel. This letter was on the ground near my office. Is it yours?

Preventing (and Recovering From) Courtroom Snafus

By Robyn Weisman |

None of the news reports about the Roger Clemens perjury trial mentioned anything about failed technology.

Simply Persuasive: Seven Habits of Highly Effective Legal Writers

By Daniel E. Cummins |

Some attorneys are courtroom attorneys, some attorneys are pre-trial litigation attorneys, but all attorneys read and write. And, like it or not, a lawyer's written product is a reflection of part of his or her worth as an attorney.

Having the Law on Your Side Isn't Always Enough

By Myron Moskovitz |

It's happened to all of us. You wrote a perfect brief: The law was clear and seemed to be on all fours with your facts.

Arbitration Administrator Rules Provisions - Watch Out!

By Charles F. Forer |

Bob is no dummy. Yes, he has made some mistakes in drafting arbitration clauses, but he always keeps his eye on the prize and understands the importance of drafting airtight arbitration provisions.

Talking 'Tort Reform' to the Public as Trial Lawyers

By Christopher Marzzacco |

As trial lawyers, we are constantly bombarded with cries for "tort reform" from politicians, mega-corporations and insurance companies each and every day.

How to Deal Effectively With Questions From the Bench

By Jim Moseley |

One of the most stressful moments of a hearing or argument comes when the judge looks up from her papers, clears her throat and says, "Counsel, I have a question."

Lost Profits Calculations Can Be a Minefield for Practitioners

By Jeff Willoughby and Jim Stavros |

Lost profits calculations can be a very tricky proposition and are not to be entered into lightly.

Overcoming the Fear Factor in Adverse Expert Cross-Examination

By Quentin Brogdon |

All trial lawyers experience a degree of fear and trepidation when facing the prospect of cross-examining the sophisticated adverse expert — the head of surgery for a hospital, the author of an authoritative textbook or an airline's chief pilot, for example.

The Zen of Mediation: A Conversation With Mediator Jeff Kichaven

By Charlotte E. Thomas |

If you have ever had the pleasure of participating in a mediation with a talented mediator, you can appreciate the unique skill set required. How does a case transform from unsettleable to one in which all parties are satisfied with the results? I recently sat down with Jeff Kichaven, a Los Angeles mediator, to discuss the psychology behind a successful mediation, and his insight is helpful for all levels of practice.

Call Me From the Road

By Daniel E. Cummins |

In a 2010 column headlined "Hang Up and Drive: Lawmakers and Courts Tackle the Dangers of Cellular Phone Use by Drivers," I analyzed the current legislative and common law trends related to cell phone use while driving.

Engaging the Jury: Lessons From a Museum Tour Guide

By Paul Roberts |

Every other Saturday, I volunteer as a docent at a local science museum. Before I could actually do this work, I had to take a number of classes.

Is 'Private' Data on Social Networks Discoverable?

By Alan Klein, John M. Lyons and Andrew R. Sperl |

On May 26, a federal court issued an opinion in a discovery dispute that applies outmoded federal electronic privacy laws from the 1980s to Facebook and MySpace.

The NFL Lockout and Its Lessons for Trial Lawyers

By Royce W. Smith |

If you're a diehard Eagles fan like me, you should be relieved to know that the 130-day NFL lockout is coming to an end.

Say It Isn't So:

By Cheryl A. Garber and John Haggerty |

In what will surely be a key segment in evolving principal/agent decisional law, in late 2009 the Pennsylvania Supreme Court turned on its head 16 years of settled law that the release of a vicariously liable principal results in the discharge of an agent.

Eminent Domain Development in Pennsylvania

By Michael K. Parrish and Mandi L. Scott |

Few issues grate on the American conscience more than condemnation for economic development.

State Budget Impasse:

By Alaine S. Williams and Amy L. Rosenberger |

Every so often, our state courts are presented with an opportunity to clarify or reaffirm one of the basic principles underlying our American form of democracy.

N.J. Supreme Court Makes It Easier to Sue Foreign Manufacturers

By J. Russell Jackson |

In a global economy, price and convenience are king. Global consumers demand produce out of season, buy sophisticated appliances made with cheap labor and build homes with materials shipped from abroad. And yet when these products prove to be defective, they expect to be able to sue the manufacturer at the local courthouse, regardless of where it resides. After all, the product reached them -- so they should be able to sue in their home court, right?

The Preclusive Effect of Class Certification Denial

By J. Russell Jackson |

Recently, many courts have been forced to address what issue-preclusive effect should be given to issues determined in putative class actions when class certification ultimately has been denied. This question can arise in a number of ways.

The Role of Pre-Hearing Security in Arbitration

By Charles F. Forer |

From opening statement to closing argument, Bob's performance in the courtroom sparkles. He is persuasive, he understands how to prove just what he needs to win, and everyone - judges, juries and arbitrators - trusts him.

Examining the Applicability of Negative Value Suits

By Linda S. Mullenix |

The phrase negative value suit is a term of art in class action litigation. This phrase commonly refers to a type of class action that is eminently suitable for class certification.

Post-Concussion Syndrome and Hidden Claims

By Brandon Swartz |

In recent years, special attention paid to post-concussion syndrome by the National Football League and the National Hockey League has brought the importance of properly dealing with concussions and head injury symptoms into the national spotlight.

In Product Safety Case, Superior Court Continues Pa. Tradition

By Larry E. Coben |

Pennsylvania courts have a long-standing tradition, serving as a legal protectorate of consumer safety.

Promoting Successful Mediation of Personal Injury Actions

By Steven Block |

When cases settle through mediation, the benefits are clear: Clients get resolution, even a healing catharsis sometimes; medical providers are paid and liens are discharged; and claim representatives and counsel can close their files. A settlement can only be reached, however, when all participants, including the mediator, are fully prepared, engaged and committed to the mediation process.

The Risk of Throwing in the Towel in Mediation

By Charles F. Forer |

Say what you want about Bob and his continued missteps, but one thing is certain: He does not give up. His years of legal experience have taught him always to be relentless and always to persevere; otherwise, clients vanish and cases implode.

Justices' Bar to Class Action Arbitration Forces Consumers to Go It Alone

By Amber Racine |

With rising prices and the growing number of unscrupulous businesses, it seems that consumers can't catch a break these days. The recent Supreme Court decision in AT&T Mobility v. Concepcion is, unfortunately, the latest challenge to consumers seeking a fair deal from the corporations they do business with.

A Guide to Getting Expert Witnesses Ready for Trial

By Mark S. Adams |

When it comes to expert witnesses, preparation is everything. An expert witness plays a critical role in the successful outcome of a trial or settlement. Working with experts can be one of the best parts of litigation and trial work because you learn something new about an interesting topic from someone who is a master in the field. It is also challenging to prepare an expert for testimony, because so much is at stake.

What Are Fringe Benefits Really Worth in Most Earnings Loss Claims?

By William E. Harris |

What is the value of fringe benefits in a lost earnings capacity claim? Too often, the lost value is assumed to be a percentage of lost earnings capacity without any analytical procedures to support the assumption beyond referencing overall employer cost data published by the government. And just as often, the forensic economist's assumed percentage of lost earnings fails to identify the specific lost fringe benefit(s) being valued. This provides no useful information to the court.

The Many Faces and Perils of Arbitration in Pennsylvania

By Anthony J. Basinski |

Few people may realize it, but in Pennsylvania there are several types of voluntary arbitration. Arbitration, of course, is essentially a contractual matter. In most cases, absent some contract providing for arbitration, the parties must go through the formal legal process to settle their disputes. What type of arbitration is selected, however, can make a big difference in the outcome.

The Outlook of Reasonable Royalty Damages After Lucent Techs.

By Anthony S. Volpe and Ryan W. O'Donnell |

An award of compensatory damages under the Patent Statute is intended to compensate the claimant for its loss due to the infringement, but is not intended to be a vehicle to punish infringers.

The Conflicted State of Pa. Products Liability Law

By James R. Ronca |

Varying interpretations of strict liability law in Pennsylvania have led to confusion that shows no sign of abating in 2011.

Successfully Arguing Psychiatric Conditions After Physical Injury

By Brandon Swartz |

One of the more nebulous aspects of any personal injury claim is whether the injuries have resulted in a psychiatric condition or injury. It seems necessarily true that all personal injuries result in some degree of emotional effect on the individual who sustained the injury.

Res Judicata, Collateral Estoppel and Arbitration

By Abraham J. Gafni |

Justice Potter Stewart explained res judicata [or claim preclusion] as "a final judgment on the merits of an action [that] precludes the parties or their privies from relitigating issues that were or could have been raised in that action"; and, with respect to collateral estoppel, [or issue preclusion], "once a court has decided an issue of fact or law necessary to the judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case."

Lack of Sanction Power Can Undermine Arbitration

By Stuart Sobel |

During the past few decades, arbitration has gained traction as an attractive alternative to court trials for resolving disputes.

Effective Client Reporting: A Lawyer's Best Friend

By Seth L. Laver and Matthew G. Laver |

Keeping your clients informed through effective reporting is the Golden Rule of malpractice risk management. Clients do not like bad results, but their willingness to live with a bad result, without suing you over it, is a product of their expectations.

2nd Circuit OKs Student's Sexual Harassment Suit Against University

By Wendy Beetlestone |

In one of the few cases in which a court has waded into a controversy involving a student's academic qualifications, the 2nd U.S. Circuit Court of Appeals in its Jan. 24 opinion in Papelino v. Albany College of Pharmacy of Union University allowed claims of a student who alleged that he was sexually harassed by his professor to go forward.

Problems With Mediation, Counterclaims and Conditions Precedent

By Charles F. Forer |

Spending two months in Florida reinvigorated Bob. He had left Philadelphia after yet another setback in his conscientious attempt to practice arbitration and mediation at the highest level. However, he returned with two new resolves -- to avoid pitfalls by foreseeing problems and to avoid the snow next winter.

Protecting Victims When Statutes Lack a Cause of Action

By Bernard W. Smalley Amnd Shayna Slater |

Sovereign immunity was originally enacted in order to protect newly formed states, including Pennsylvania, from tort liability that could have essentially bankrupted states during their infancy. The doctrine of governmental immunity followed closely behind and shielded local governments and municipalities from a similar fate.

The IRS's Proposed Amendments to Its Informant Award Program

By Marc S. Raspanti And Douglas K. Rosenblum |

For the third consecutive year, the Internal Revenue Service has failed to pay any informants under its newly minted whistleblower program. The old program, which was first codified in 1867, was generally considered a disappointment. In 2006, Congress passed the Tax Relief and Health Care Act, which created the IRS Whistleblower office and made rewards to whistleblowers less discretionary.

'Baseball Arbitration' and the Trial of Socrates

By Abraham J. Gafni |

Every year, during January and February, sports pages report ongoing negotiations between professional baseball teams and players. Repeatedly, the public is advised that absent a settlement, the labor agreement between the team owners and the players' union requires that salaries of certain veteran players be determined by "Baseball Arbitration."

Choose or Lose: Don't Leave Designating Deposition Excerpts to Others

By Murray Fogler |

For many lawyers, a how-to article about deposition designations is about as exciting as rearranging a sock drawer. But, that's the problem.

Jury Persuasion Takes on Different Dimensions

By Nancy L. Neufer, Cynthia H. Posner and Robert S. Duboff |

Corporate defendants involved in complex litigation often face the challenge of keeping trial preparation costs in check while ensuring that the most compelling story is developed to satisfy both the legal burdens defined by the law and the trial jury's need to understand and be motivated by that story.

What Signing at the 'X' Really Means

By Michael F. Schleigh |

Ski resorts can avoid liability for accidents through proper waivers and release clauses, which often appear in rental agreements or on ski lift tickets.

Check Your Ego at the Door: A Guide to Effective Advocacy

By Douglas S. Lavine |

The popular culture's portrayal of attorneys, for the most part, is less than flattering. Lawyers are often depicted as sleazy, sneaky "mouthpieces" who will lie, cheat and steal to win their case.

A Study in Anatomy

By Brandon Swartz |

It is important for an attorney to be well versed in human anatomy so he or she can form an effective cross-examination for dealing with exclusive damage to a body part.

How to Authenticate Social Networking Sites

By Joshua A. Norris and Krystal Pfluger Scott |

Facebook was the top-visited website for 2010, beating out Google's homepage, according to a Dec. 30, 2010, article in the Los Angeles Times . An April 7, 2009, article on Symantec Corp.'s website notes that two-thirds of the world's Internet users access social networking sites like Facebook and MySpace. Smart litigators will know how to get evidence from these sites admitted into evidence.

Mastering the Data in a Calculation of Earnings Capacity

By William E. Harris |

In Pennsylvania, a "person's earnings capacity is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training."

Recovering for Neck Injuries

By Brandon Swartz |

Similar to lower back injuries, neck injuries are some of the most common injuries encountered in the personal injury setting.

The Cultural Theory of Plane Crashes and Witness Disasters

By Melissa M. Gomez |

Picture this: An airplane is in a holding pattern over New York for more than one hour because of fog limiting arrivals into John F. Kennedy International Airport. During this hold, the aircraft was exhausting its reserve fuel supply, which would have allowed it to divert to its alternate, Boston.

Unpublished Opinions Should be Allowed to Be Cited

By Howard J. Bashman |

The month of April marked another turning point in the ongoing battle over whether appellate courts should prohibit citation to opinions designated as unpublished or non-precedential. On April 13, the advisory committee on appellate rules of the U.S. courts voted 7-2 to approve proposed Federal Rule of Appellate Procedure 32.1, which would allow all opinions, even those designated as unpublished or non-precedential, to be cited in the U.S. courts of appeals.

Leave Your Baggage Behind

By Connie Nichols |

It wasn't that long ago that trial consultants could be seen lugging huge, 50-inch monitors into courtrooms and counting on the power of prayer to bring up images.

Recording Industry Lawsuits: Is Suing You Customers a Good Idea?

By Fred von Lohmann |

Four thousand two hundred and eighty lawsuits and counting. That's how many lawsuits have been brought by the major record labels against music fans for using peer-to-peer (P2P) file-sharing software (like Kazaa or Morpheus) to swap music over the Internet.

Do New Technologies Put Client Confidentiality in Jeopardy?

By W. Brian Ahern |

In 1876, Alexander Graham Bell invented the electrical speech machine, a device that we now refer to as the telephone. Although Bell imagined great uses for his invention, he could not have been aware that it would entirely transform the way the world interacts, communicates and exchanges information.

An Anticipated Decision With Far-Reaching Results

By David S. Senoff |

On June 21, the U.S. Supreme Court issued its decision in Aetna Health Inc. v. Davila. The decision was one of the most anticipated decisions regarding the Employee Retirement Income Security Act in quite some time.

Handling Tort Claims From a Predecessor's Toxic Substance

By Eric L. Horne and William B. Pentecost Jr. |

Benzene, benomyl, isocyanate, tungsten carbide, cobalt, PCBs, silica, lead paints -- the list goes on.

Payment by PIGA in Joint and Several Liability Judgments

By Paul P. Gaffney |

If one trial court has its way, an anticipated ruling of the Pennsylvania Superior Court could permit the Pennsylvania Property and Casualty Insurance Guaranty Association (commonly referred to as PIGA) to avoid contributing entirely to payment of a medical malpractice judgment.

Uncertainty About Chinese Courts Fuels Alternative Resolutions

By Jingzhou Tao |

Another year of record levels of foreign direct investment in China shows that the world's investors continue to place their bets on that country. But what happens when the gamble leads to problems?

Knowing What They Know

By Brandon Swartz |

One of the most common injuries encountered in the personal injury setting is a lumbar disc herniation. Before a plaintiff's attorney can effectively cross-examine a defense medical witness, the attorney must understand the anatomy of the particular injury.

Representing the Catastrophically Injured, Part II: Recovering Damages

By Larry E. Coben |

Every year, thousands of Americans are catastrophically injured or lose loved ones on our highways, on the job, and at home because of poorly designed and manufactured products, as well as corporate neglect, stemming from a mercenary mindset toward public safety.

Party Plagued by Electronic Discovery Missteps Loses at Trial

By Christopher A. Lewis, Mary Ann Mullaney and Stephen M. Orlofsky |

On April 6, a jury sitting in federal district court in Manhattan returned a verdict of nearly $29.3 million in Zubulake v. UBS Warburg LLC, a suit that warns of the fate that may await litigants who take electronic discovery missteps.

Class Action Privilege Issues: Precertification Questionnaires

By Linda S. Mullenix |

During class action discovery, attorneys may invoke attorney-client privilege or work-product doctrine to shield information from disclosure. In most instances, the principles governing these doctrines in ordinary litigation will apply in the class action context. However, in other instances, the fact that the litigants are involved in a class action will affect questions of privilege and work product.

Plunging Into the Depths of Swimming Accident Liability

By Mario C. Colitti |

We are now in the throes of another sultry summer. The time is ripe for recreational excursions to the local swimming pool, lake or ocean beach. Swimming is one of life's greatest pleasures; its therapeutic and cardiovascular benefits are unparalleled. However, the sport of swimming is equally wrought with danger, uncertainty and serious risks that expose owners and operators to substantial liability.

Problems Surfacing for Class Action Fairness Act

By Georgene M. Vairo |

Signed into law by President Bush in February, the Class Action Fairness Act of 2005 provides expanded federal jurisdiction over class actions. Two appellate court decisions and a district court opinion have dealt with the important initial question of whether the act applies to a particular case. As we will see, the appellate cases also involve an unintended thorny appellate jurisdiction issue.

Arthur Andersen v. U.S. - What Are the Long-Term Implications?

By David M. Howard |

The U.S. Supreme Court overturned the highly publicized obstruction of justice conviction of Arthur Andersen May 31. It seems like a good time to try to assess the long-term implications of this prosecution.

Enron Scandals Spur Proposed Credit Rating Legislation

By Brian Carroll |

The regulatory legacy of Enron, WorldCom and other major accounting frauds remains a work in process. Credit rating agencies, such as Moody's Investor Services Inc., Fitch Inc. and the Standard and Poor's Division of the McGraw-Hill Companies Inc. (S&P), issued favorable credit ratings of WorldCom bonds just three months before it declared bankruptcy and, more disturbing, Moody's and S&P favorably opined on Enron bonds four days before its bankruptcy.

The Class Action Fairness Act and Retroactivity

By Linda S. Mullenix |

Eight months after President Bush signed the Class Action Fairness Act (CAFA) into law, federal courts have been grappling with the retroactive application of the statute to class actions pending at the time of the signing.

2nd Circuit Rejects Copyright Settlement Over Electronic Content

By Mark Hamblett |

In a case that presented two judges with the thorny question of whether to recuse themselves after they had begun working on the matter, the 2nd U.S. Circuit Court of Appeals on Nov. 29 threw out a settlement between freelancers and media companies that reprinted their works in electronic databases.

Local Jurists Prepare to
Join and Leave Supreme Court

By Howard J. Bashman |

Since my last column appeared in these pages some four weeks ago, U.S. Supreme Court nominee Harriet Miers has mercifully receded from memory as though a bad dream. In her place, President Bush had the good sense to nominate the 3rd U.S. Circuit Court of Appeals' own Samuel A. Alito Jr., an outstanding judge whom many of us in the Philadelphia region know well.

Courts Erred in Buying
Web Browser-Ignorance Defense
In Child Porn Case

By Howard J. Bashman |

The Superior Court recently ruled that an individual who intentionally visited Web sites in order to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be convicted for possessing images that were automatically saved to the computer's hard drive as a result of how a Web browser's cache function operates. That ruling strikes me as badly mistaken, for reasons that I shall explain.

Exposing the 'Phantom Epidemic'
In Silica Litigation

By Roger K. SmithAnd P. Daffodil Tyminski |

On June 30, 2005, the earth shifted in the silica litigation. On that day, U.S. District Judge Janis Graham Jack of Texas, the judge overseeing pretrial discovery in the silica product liability litigation in In re Silica Products Liability Litigation, recommended that nearly 10,000 diagnoses of silicosis be thrown out as scientifically unreliable and legally suspect.

Ethics Is Critical When Dealing With Prospective Arbitrators

By Charles F. Forer |

Anne's attorney Bob is an avid reader of The Legal Intelligencer. His favorite article on arbitration said lawyers should engage in voir dire of all potential arbitrators. Bob could not agree more.

Military Service as a Mitigating Factor
Trumps Mandatory Minimums

By Pamela A. MacLean ALM |

The reduction of a five-year prison sentence to 11 days in a crack cocaine case may have given a veteran with an exemplary 17-year Army career a second chance, but it also prompted prosecutors to challenge the crediting of military service in the determination of criminal sentences.

Should You Fear What May Be Missing
From the Record on Appeal?

By Howard J. Bashman |

In August 2006, an en banc panel of the Superior Court of Pennsylvania issued a decision of importance to lawyers who handle appeals before that court.

'Yes' or 'No' Questions Only

By Brandon Swartz |

It is important to establish facts in your favor early in a deposition. An effective cross-examiner will always have control of the deposition, regardless of the experience of the defense's testifying medical witness.

Should You Fear What May Be Missing
From the Record on Appeal?

By Howard J. Bashman |

In August 2006, an en banc panel of the Superior Court issued a decision of importance to lawyers who handle appeals before that court.

Err on the Side of Caution
In Disclosing High-Low Agreements

By Charles F. Forer |

Bob helped plaintiff Rose take full advantage of a high-low agreement in a two-defendant case.

Justice Castille:
Don't Let 'Em See You Sweat

By Howard J. Bashman |

Given the citizenry's continued discontent over the matter, the last person you'd expect to be keeping the issue of state judicial pay raises in the headlines is the author of the Pennsylvania Supreme Court's September 2006 decision invalidating legislation to repeal those judicial pay raises while upholding the repeal of every other aspect of that controversial pay raise law.

A Revised List of 10 Tips
For Excellence in Appellate Advocacy

By Howard J. Bashman |

Five and a half years ago, when this Upon Further Review column was still in its infancy, I offered my original list of top 10 tips for excellence in appellate advocacy. Now is an opportune time to revisit the subject.

Who Is the Mediation Privilege
Designed to Protect Anyway?

By Abraham J. Gafni |

When I last discussed mediation privilege in The Legal Intelligencer (Nov. 21, 2005), I noted some concerns I had with respect to whether the privilege was somewhat illusory, notwithstanding the assurances provided by the Pennsylvania statute titled Confidential Mediation Communications and Documents.

¿Original Source¿ Rule Applied
Strictly Under False Claims Act

By Christopher Hall |

In an opinion that will be of interest to both corporations and qui tam relators, the U.S. Supreme Court recently limited federal-court jurisdiction over False Claims Act proceedings through strict application of the ¿original source¿ requirement of the statute.

Supreme Court Approves Electronic
Discovery Rule Changes

By Gary J. Mennitt |

On April 12, the U.S. Supreme Court unanimously approved, without comment, significant amendments to the Federal Rules of Civil Procedure concerning electronic discovery. Absent adverse action by Congress, those amendments will take effect on Dec. 1.

The Battle Over the Soul
Of Law Professor Blogs

By Howard J. Bashman |

Late last month, I was among the participants at a Harvard Law School-hosted conference titled Bloggership: How Blogs are Transforming Legal Scholarship. Unbeknownst to most of us outside the legal academy, there apparently is some disagreement over whether blogs that law professors operate should be regarded as legitimate scholarship and public service or should be dismissed as a frivolous waste of time that detracts from the more traditional scholarly pursuits of writing massive law review articles and po

Third Parties and the Confidentiality
In Arbitration Proceedings

By Charles F. Forer |

Anne's attorney Bob sure learned a lot about arbitration when he took on Anne's case against John. His belief that arbitration-confidentiality was sacrosanct, even in the absence of a confidentiality provision, went out the window when he kept bumping into attorneys who wanted to discuss the nuances of the dispute with him.

Mediation Confidentiality
And How It Applies to Experts

By Charles F. Forer |

Anne's attorney Robert had been having a tough time prosecuting Anne's corporate waste claims against John.

Ensuring a Timely Appeal From an Arbitration Award

By Charles F. Forer |

Anne's attorney, Bob, carefully reviewed an arbitration agreement for her before she invested more than $200,000 in a mutual fund. Bob had heard that big companies inserted arbitration provisions into their customer agreements to preclude their customers from any shot at justice when the big company breached the agreement.

Better Patent Enforcement Through the ITC

By Louis M. Heidelberger and Jonathan M. Darcy |

Patents are important assets for many companies. Such companies have traditionally relied upon monetary awards no less than a "reasonable royalty" for entire infringing apparatuses, trebling of these awards for willful infringement, and the threat of an injunction to increase damages and settlement values. However, proposed congressional patent reform and recent judicial precedent threaten this reliance.

Recognizing Greatness in the
3rd Circuit's Judge Becker

By Howard J. Bashman |

The death last month of 3rd Circuit Senior Judge Edward R. Becker causes me to think: If there is a red light governing the duration of appellate oral arguments in heaven, we can be sure that it's being enforced in a much more relaxed manner now.

Has the Supreme Court Made What's Old New Again in Hall Street v. Mattel?

By Harrie Samaras |

The Federal Arbitration Act was originally enacted in 1925 to replace judicial opposition to arbitration with a national policy favoring arbitration. The FAA sought to place arbitration agreements on equal footing with all other contracts.

Successfully Asserting a Shareholder's
Right to Inspect Records

By David M. Laigaie |

Pennsylvania shareholders have long had the right to inspect corporate books and records. That right, however, can be elusive in the face of opposition from the corporation. This article provides guidance for shareholders and their counsel on drafting records inspection requests that maximize the chance of success. It also discusses various litigation hurdles that counsel should expect and proposes ways to surmount those hurdles.

U.S. High Court Report Card:
How the 3rd Circuit Fared in Oct. '06

By Howard J. Bashman |

The U.S. Supreme Court, in its just-completed term, issued a total of 67 signed opinions in argued cases.

Avoid Quick Fixes and Control the True Cost of Litigation

By Joseph F. Speelman |

How does a business enterprise in the United States reduce its litigation costs in an era when the U.S. legal system, and especially the litigation process, involves profound dysfunction and spiraling costs? Surprisingly few business leaders ask that question.

Making Magic in the Courtroom: Pulling Presentation Skills Out of a Hat

By Mark J. LeWinter |

Can trial lawyers learn how to better connect with jurors by taking a few magic lessons?

Persuading Non-Parties to Agree to Arbitration

By Charles F. Forer |

Anne has breach of fiduciary duty and corporate waste claims against John, a former 50 percent stockholder in JoAnne Corp., a closely held corporation that Anne and John formed.

Raising Arbitration Right From the Get-Go

By Charles F. Forer |

Five months ago, Anne called her attorney, Robert, telling him that John had filed a writ of summons and that someone just handed a copy of the writ to her.

Woman Can't Sue Pastor for Revealing Her Affair to Congregation

By Mary Alice Robbins |

The Texas Supreme Court's recent ruling that a woman cannot sue her former counselor and pastor for telling the congregation about her extramarital affair - information she told him in confidence - is similar to decisions in other church discipline cases.

Is Arbitration the Best Approach to Defending Legal Malpractice Claims?

By W. Brian Ahern |

Many attorneys regularly consult with clients regarding the use of binding arbitration clauses. However, lawyers are often unsure whether such clauses should be included in their own firm's client agreements.

'Cosmeceuticals': The Fine (Regulatory) Line Between Cosmetics and Drugs

By Kimberly H. Clancy |

In January, Jan Marini Skin Research suspended U.S. sales of its product, Age Intervention Eyelash Conditioner, which had been marketed as a cosmetic product that could be used to make eyelashes look longer and increase eyelash growth.

U.S. Judge Permanently Blocks Canon Lawsuit in Costa Rica

By Jordana Mishory |

Recently, U.S. Magistrate Judge Stephen T. Brown in Miami permanently blocked a lawsuit in Costa Rica against Canon's Latin American division.

SLUSA Exception Applied, Keeps Securities Class in N.Y. State Court

By Beth Bar |

A federal judge in New York has permitted a securities class action lawsuit filed against defense contractor L-3 Communications Holdings to proceed in New York's state court.

What Does an Appellate
Attorney Actually Do?

By Howard J. Bashman |

Last month, The Legal Intelligencer published an article headlined Appeals for More Appellate Lawyers Being Answered. The article begins, A demand from judges and clients for skilled appellate attorneys is starting to take hold on Pittsburgh and Philadelphia law firms who in turn are creating with increased frequency specialized appellate practices.

Recusal Sought as Federal Judge in Florida Accused of Religious Bias

By Julie Kay |

Fort Lauderdale, Fla., attorney Loring Spolter is accusing U.S. District Judge William Zloch of bias in two employment discrimination cases, citing his deep religious beliefs, and wants the judge removed from the cases.

Issues That Should Be Resolved
Before You Arbitrate: Part II

By Abraham J. Gafni |

In Part I of this series, I indicated that disputants often agree that they will arbitrate their differences and select their arbitrator(s), but fail to provide the framework or guidelines that will make clear to the arbitrators the scope of their authority and the procedures they are to employ in conducting the arbitration and, ultimately, issuing their decisions.

9th Circuit Ruling Raises Stakes for Those Facing Parallel Investigations

By Matthew D. Lee And Tyler Brody |

A recent decision by the 9th U.S. Circuit Court of Appeals, United States v. Stringer, gives government lawyers, and prosecutors in particular, significant latitude to conceal the existence of a criminal investigation from individuals and companies who are already embroiled in civil proceedings with the government. In the wake of Stringer, there exists a fine distinction between what government lawyers are allowed to do and say in conducting parallel civil and criminal government investigations, and what may constitute bad faith and deceit that infringes on a criminal targetís constitutional rights.

Producing and Directing Your Way to Settlement

By Joel D. Feldman |

In order to get the best result for our clients, whether by settlement or verdict, we need to reduce our cases down to their essence, simplifying themes and presenting compelling arguments on the evidence.

Commentary: Quality Versus
Quantity in Appellate Matters

By Howard J. Bashman |

When it comes to handling appeals, as in so many other areas of the law, some lawyers are more talented than others.

Keeping Arbitration Opinions Confidential Can Save Future Cases

By Charles F. Forer |

Anne brought a personal injury lawsuit against the snowboarding/sledding facility where she had rented a sled and broken her leg in a collision.

Seeking Attorney Fees in Arbitration
Could Backfire on Lawyers

By Charles F. Forer |

One year ago, Bob was really burned up about his adversary¿s arbitration demand. The demand converted a $100,000 breach of contract dispute into a $1 million claim involving lost profits and other consequential damages.

N.J. Case Can Help End Delays in Gaining Post-Arbitration Awards

By Charles F. Forer |

Anne's attorney Robert had been in great form at the three-day arbitration hearing. The resulting arbitration award gave Anne everything that she sought.

Are Rich Conn. Divorce Litigants Avoiding Full Financial Disclosure?

By Thomas B. Scheffey ALM |

Connecticut's standard financial affidavit form used in divorce cases has blanks to fill in eight categories of assets, including real estate, vehicles, "other personal property" and "all other assets."

Navigating the Ins and Outs of the Asbestos Trust World

By Thomas Anapol |

To paraphrase the immortal Mark Twain, news of the demise of asbestos litigation has been greatly exaggerated. Asbestos litigation is alive and well, and many firms nationwide and in Philadelphia are still immersed in it.

Pa. High Court to Decide How Many
Issues You Can Raise on Appeal

By Howard J. Bashman |

One of the most rudimentary pieces of advice an experienced appellate lawyer can provide is that it is a mistake to raise too many issues on appeal.

Issues That Should Be Resolve
Before You Arbitrate: Part III

By Abraham J. Gafni |

In parts I and II of this series, I attempted to set forth issues that parties should resolve in advance when deciding to arbitrate a dispute.

Supreme Court Affirms Rights of Privately Placed Special Ed. Students

By Catherine Merino Reisman and Amelia Carolla |

In a case of first impression, the Pennsylvania Supreme Court has held that school districts in the commonwealth must provide services available under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794, to students who are placed by their parents in private schools and dually enrolled in the school district.

Foreign Subsidiaries Being Prosecuted in the U.S. for Bribes Overseas

By Laurence A. Urgenson and Audrey L. Harris |

In an effort to level the playing field for U.S. businesses overseas, many countries within the Organisation for Economic Co-operation and Development adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1998. Nearly 10 years later, the main result may have been to enlarge the playing field of U.S. law enforcement.

When Arbitrators Are Appointed by Parties, Watch Out for Pitfalls

By Charles F. Forer |

Bob could no longer face clients upset by his mistakes that undermined arbitrations and mediations alike. "Enough is enough." So Bob found "an easier way." He let friends and family know that he was now an arbitrator for disputes of all kinds.

Produce My Notes? I Thought That Was Work Product

By Joshua Horn and Amy C. Purcell |

In Securities and Exchange Commission v. Kent H. Roberts, Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California ordered production of certain documents created by a law firm that conducted a stock option backdating investigation.

'Dropping the Nickel' in a Civil Context

By Seth L. Laver |

Imagine this: You are defending a civil suit in which your client, an accounting firm, has been sued by a plumbing supply company for damages in excess of $20 million.

A Uniform Data Breach Notification Law

By James E. Kurack Jr. |

Given the current recession and mortgage crisis, it is difficult to imagine the new president and Congressional leadership focusing on anything besides the economy.

Another Ride on the Fair Value Roller Coaster

By Michael J. Molder |

In late September and early October, we observed substantial upheaval in the nation's investment markets and severe tightening of credit standards as financial institutions came to grips with problems with their portfolios of mortgages and mortgage-backed securities.

Metadata: To Produce or Not to Produce?

By Pamela M. Tobin |

By now, every attorney knows that nearly all new business information (93 percent, according to one source) is stored on electronic media, such as computer drives and CDs.

Defense Strategies in Foodborne Illness Litigation:

By John E. Hall and John H. Williams Jr. |

It seems that every few months, news headlines blare the latest with regard to a tainted food item, from produce sold in a fast food restaurant to baby food marketed from China.

What's Mine is Yours

By Susan V. Metcalfe |

In this visual, media-driven world, more and more lawyers are using courtroom technology to speed the flow of trials and more effectively communicate to judges and juries.

Assessing the Odds of Punitive Damage Awards

By William E. Harris |

Punitive damage awards: While not often awarded, the opportunity for, as well as the threat of, a substantial punitive damage award can help two opposing parties find an amicable agreement to their dispute. But how does one evaluate whether there is a reasonable chance of having punitive damages awarded, and, if so, what is the monetary exposure?

How to Get on the Trial Court's Good Side: Lessons From a Clerkship

By Megan S. Murray |

From Sept. 1, 2005, through Aug. 31, 2006, I had the privilege, and the unquestionably daunting responsibility, of clerking for the Honorable Paul Kapalko, at the time the presiding judge of New Jersey's Monmouth County Superior Court Family Part.

Watch Out: Your Jurors Might Be Blogging

By Trish Renaud |

Jurors have always had certain itches. Some found it hard to resist searching newspapers to see just what they weren't being told about the case before them. Others would insist on finding a better definition in the dictionary for that legal term that had become a sticking point in deliberations. Still others simply couldn't refrain from sharing details of the case with a friend or family member.

Electronic Discovery: There's Only a Fine Line Between Inadvertent Disclosure and Carelessness

By Michael A. Iannucci |

While electronic discovery has gone from a party crasher to an expected guest in litigation, lawyers are still learning where to seat it, what to feed it and how not to offend it.

The Value of the Opening Statement in Mediation

By Abraham J. Gafni |

Judges sitting in nonjury trials and arbitrators are often asked by attorneys whether they want to hear an opening statement or would prefer to begin immediately with the presentation of evidence.

Reducing the Costs of Privilege Reviews and Logs

By Jeane A. Thomas, David D. Cross And Courtney Ingraffia Barton |

The rapid proliferation of electronically stored information, or ESI, and the potentially devastating effects of privilege waiver have combined to create nearly crippling conditions for even the most sophisticated companies involved in litigation.

Wyeth v. Levine: A Monumental Victory for Consumers

By Sol Weiss |

In a 6-3 decision March 4, the U.S. Supreme Court ruled in Wyeth v. Levine that, in the absence of express congressional intent, drug manufacturers could not use the federal pre-emption defense to escape liability for harm caused by their products.

My Case Was Transferred to an MDL, Now What?

By Gregory Spizer |

A prospective client walks into your office. He tells you that his automobile suddenly and unexpectedly accelerated without provocation and, as a result, he was injured. After reviewing the police report, photos from the scene and having an expert examine the vehicle, you confirm that your client's story is accurate and the car was defective. You file suit in the Eastern District of Pennsylvania against the automotive manufacturer.

Fraud Enforcement and Recovery Act Strengthens Federal False Claims Act

By Michael A. Morse And Peter S. Wolff |

On May 20, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009, or FERA, which substantially strengthens the federal government's ability to investigate and prosecute financial fraud.

Electronic Discovery Now:

By James L. Michalowicz and Stephanie A. "Tess" Blair |

The Unsettling Truth About the Debt Settlement Industry

By Beth Moskow-Schnoll |

Overall consumer debt has more than doubled in the last 10 years, with the nation's revolving debt totaling almost $1 trillion. This debt undoubtedly contributed to the nation's current credit crisis — a crisis that has caused consumers to become increasingly desperate as unemployment rates have skyrocketed to 9.4 percent, and we find ourselves in the midst of a steep recession.

Losing One's Appeal (Before it Starts)

By Jay Evans |

The difficulties that appellate practitioners can face become obvious by spending even a single day at one of our appellate court oral argument sessions. Certain themes, wholly unrelated to the merits underlying any appeal, will emerge again and again: timeliness, finality and waiver. These three issues can be fatal to any appeal, distract from the merits of a case, and can stall the momentum of a compelling argument.

Part 1: The 'New' New Jersey False Claims Act: It Was Born to Run

By Marc S. Raspanti And Pamela C. Brecht |

On Jan. 7, 2008, the New Jersey Legislature joined 20 other states and the District of Columbia in passing its version of a civil false claims act.

Part 3: The 'New' New Jersey False Claims Act: It Was Born to Run

By Marc S. Raspanti And Pamela C. Brecht |

In February 2006, Congress enacted the Deficit Reduction Act of 2005, or DRA. Sections 6031, 6032 and 6034 of the DRA provided amendments to Title XIX of the Social Security Act, 42 USC § 1396, et seq., and constituted efforts to form an alliance between the federal government and the states to ratchet up efforts to protect the integrity of the Medicaid program.

Part 2: The 'New' New Jersey False Claims Act: It Was Born to Run

By Marc S. Raspanti And Pamela C. Brecht |

The reality of limited government resources causes both a delay in the pre-complaint investigation of False Claims Act cases at both the federal and state level, and often affects the government's decision to take a primary role in the litigation.

When Can Attorneys Advise Clients to Change Online Privacy Settings?

By Dan Nabel |

Once upon a time, a legal ethics professor told a great story on the first day of class. As a young lawyer, he represented a woman in a personal injury case who had suffered a serious injury as a result of a car accident.

What to Do and Not Do in Voir Dire and Opening Statements

By Michael P. Maslanka |

Sooner or later, corporate counsel go to trial. The court denies summary judgment, and the other side's settlement offer is not tethered to reality, or perhaps the company execs (the clients of corporate counsel) want to take a principled stand. Here is a cheat sheet on what to do -- and what not do to -- to prepare for when that day comes, first in voir dire, and next in opening statements.

Changing the Game: The Effect of Twombly/Iqbal on Affirmative Defenses

By Michael A. Iannucci |

Your client has been sued. Your time to file an answer is about to expire. What do you do? If this were a law school exam, any civil procedure student (even the one who never understood International Shoe) knows a defendant can answer a complaint pursuant to the standard set forth in Federal Rule of Civil Procedure 8(c).

In The Driver's Seat

By Daniel E. Cummins |

If 2009 is any indicator, it will remain a challenging task to stay on top of automobile litigation law and, at times, difficult to predict how the courts will rule on the myriad of issues continually arising in the novel area of post-Koken cases.

Danke Schoen, Ferris Bueller

By Daniel E. Cummins |

The recent telecast of the Academy Awards Ceremony, with its tribute to the late movie director John Hughes, brought back to mind many of the teen epic movies of the 1980s along with their famous characters.

Satisfying Liens:

By Glenn A. Ricketti |

The goal of any personal injury settlement is to perfect a final resolution of any and all claims.

Technology in the Courtroom: A Double-Edged Sword

By George C. Zumbano and Benjamin R. Messing |

Open any recent periodical targeting attorneys and you will invariably find an article with a siren's call to incorporate technology into trial presentations or risk being at a disadvantage to an opponent who can. What most of those articles overlook are the practical barriers to using technology that limits its usefulness in litigation.

Take Me Out to the Ballgame

By Daniel E. Cummins |

It's that time of year again -- Little League baseball is starting up for boys and girls.

The Death of a Child: Loss of Society and Comfort Revisited

By Anita L. Pitock |

As a mother, I know that if I were ever to lose my son, there wouldn't be enough money in the world to compensate me for never being able to talk to him again, hug him and share dinner with him.

Not Unlike the Other

By Daniel E. Cummins |

In last month's column, I reviewed the ongoing struggles of trial court judges from across the state in weathering the onslaught of "Hurricane Koken" and the novel issue of whether third party liability claims and the UM/UIM claims should be allowed to proceed in a consolidated fashion. With this article, I address those post-Koken cases that involve bad faith claims.

What Triggers the Appeal Period in Arbitration?

By Charles F. Forer |

After he received the arbitration award in favor of the other side, Bob said to his client: "A loss, but only temporary."

Attorney-Witness Consultations: Things Better Left Unsaid?

By Jeffrey N. Rosenthal |

Most practitioners will tell you it is inherently improper to speak with a witness during a break in live testimony. Most judges would probably agree. If observed, the result could be open admonishment, the preclusion of the witness' testimony, sanctions levied against the attorney or worse. On the surface such a blanket prohibition may make sense. But is this really the law? Or is it just the way things are done? The answer may surprise you.

Representing the Catastrophically Injured, Part I

By Larry E. Coben |

For more than 35 years, I have represented individuals catastrophically injured or killed -- locally and nationwide -- as a result of motor vehicle accidents, defectively designed motor vehicles and helmets.

Framework for Calculation of Lost Household Services

By William E. Harris |

In cases that involve a personal injury or wrongful death, plaintiffs (and their survivals) may be entitled to recover the economic value of lost household services that the injured party would have likely provided.

To Enforce Settlement Agreements, Pa. Courts Follow Two Approaches

By Edward S. Robson |

Ninety-seven percent of all cases settle before trial. Many of these settlements occur with a handshake at a JPT or pretrial conference. Inevitably, some of those settlement agreements spawn additional disputes between the parties as they contest the terms of the settlement or its conditions.

Understatement's Power:

By Douglas S. Lavine |

Unfortunately, we live in a society in which it sometimes seems as if everyone is shouting at everyone else. The paradigm is many of the television and radio shows that purport to pit a "conservative" against a "liberal."

Steps to Help You Steer Clear of an E-Discovery Disaster

By Fred M. Blum and Nader Mehdizadeh |

With the British Petroleum leak in the Gulf plugged, legal claims from the oil spill are starting to flow. The leak has resulted in an environmental and economic disaster, ruining countless lives and businesses -- not to mention the havoc that it has wreaked on wildlife and the sea. With the catastrophe, lawsuits by fishermen, business owners and others have followed.

The Double-Edged Sword of Technology in the Courtroom

By George C. Zumbano and Benjamin R. Messing |

Open any recent periodical targeting attorneys and you will invariably find an article with a siren's call to incorporate technology into trial presentations or risk being at a disadvantage to an opponent who can.

Mohawk Industries: A Pragmatic Decision

By Neal Troum |

In law, as in comedy, timing can be everything. The joke may be funny, but if the punch line comes too late, it can flop.

The Web of Discovery

By Lev Kalman |

Social networking Web sites and other Internet forums have, to differing degrees, eroded the personal privacy of their users. Often, this erosion is unintentional; often the technology and the information it reveals is not thoroughly understood; and often a third party's ability to collect substantial and qualitatively important amounts of information is underestimated.

The 2009 FERA Amendments:

By William D. Clifford and Jeffrey R. Hantz |

"He who brings a case on behalf of our Lord the King as well as for himself," or in Latin, "qui tam pro domino rege quam pro se ipso in hac parte sequitur" — qui tam, for short — is the most single important fraud-fighting mechanism the United States government has in place today. Recent amendments to the False Claims Act (FCA) expand the ability of a qui tam relator to bring an action on behalf of the United States in important ways that must be understood by both government contractors and their attorneys.

3rd Circuit Has Clear Rule on Pre-Hearing Discovery in Arbitration

By Charles F. Forer |

Bob is an experienced alternative dispute resolution, or ADR, practitioner. Just yesterday, for instance, he patted himself on the back after a case management conference. During the conference, the parties discussed the pre-hearing discovery that they needed. The arbitrator pointed out that Bob should move quickly in lining up his intended third-party depositions because it might be necessary to get a court to enforce the arbitrator's subpoena -- and that process could take a lot of time.

Understanding of Social Media Intrinsic to Modern Legal Practice

By Gregory S. Spizer |

In the most recent sequel to the Die Hard movie series, "Live Free or Die Hard," the movie's villain is a technical genius who creates mass chaos by hacking into the major U.S. computer systems. Once again, Bruce Willis plays John McClane, the street-wise detective in the Die Hard films, who is greatly overmatched by his nemesis -- a young computer mastermind.

Arbitrator Can Decide Validity of Arbitration Agreement, Justices Rule

By Abraham J. Gafni |

Your client, an employee at a large company, has called to advise that she has been discharged from her employment.

Mediation Offers Advantages to Litigants Looking for Insights

By Jane Cutler Greenspan |

Ever since Roscoe Pound presented "The Causes of Popular Dissatisfaction with the Administration of Justice" at the annual convention of the American Bar Association in 1906, voices within the profession have lamented the low opinion of the legal system held by many litigants and laypeople. Although the reasons behind this sense of irritation with the legal system are myriad and complex, alienation from other parties and from decision-makers is a common theme.

Arbitration Appeals Based Upon Manifest Disregard of the Law

By Abraham J. Gafni |

Two years have passed since the U.S. Supreme Court's decision in Hall Street Associates v. Mattel Inc. in which the court denied parties the ability through their arbitration agreements to create a judicial right of review in circumstances other than those specifically set forth in the Federal Arbitration Act, or FAA.

Forum Choice a Key Issue in Pa. Consumer Protection Law Cases

By Christopher P. Soper |

In 1968, the Pennsylvania Legislature passed the Unfair Trade Practices and Consumer Protection Law in order to protect the public from businesses engaging in fraud and unfair or deceptive practices.

Pa. Supreme Court Limits Liability for Violations of One Call Act

By Peter C. Buckley |

The Pennsylvania Supreme Court in Excavation Technologies Inc. v. Columbia Gas Co. of Pennsylvania recently ruled that the economic loss doctrine bars recovery of purely economic losses caused by a utility company's failure to properly mark the location of underground utility lines.

Depositions in Arbitration: A Look at Enforcing Nonparty Subpoenas

By Charles F. Forer |

When we last checked, Bob had sought to compel a nonparty to comply with a deposition subpoena that the arbitrator without fuss had issued at Bob's request.

Sticky Situation:

By Joseph M. Konieczny |

Many articles have been written forewarning corporate officers (and directors) that they may be held personally liable for their corporation's patent infringement under several legal theories including, for example, inducement of patent infringement under 35 U.S.C. Section 271(b); agency theory; alter ego/piercing the corporate veil; and equity.

Exclusive Venue Provisions Might Benefit Companies

By William Savitt |

The explosion in stockholder litigation challenging merger transactions in recent years has given rise to a knotty problem for transaction planners: stockholder actions seeking to enjoin signed deals under the law of the target company's state of incorporation (often Delaware) that are brought in the courts of another state (typically that of the target's headquarters) or, even more often, in both states simultaneously.

Economic Uncertainty Clouds Projection of Damages

By William E. Harris |

"It's the economy, Your Honor." That is the answer that might explain why future loss projections made in the past few years may have not only missed the mark, but may have missed the side of the barn.

Companies in Hot Seat as Courts Advance Climate Change Claims

By Mary T. Yelenick, Thomas J. McCormack and Andrew A. Giaccia |

Three important court rulings have been handed down in recent weeks regarding claims for harm alleged to have resulted from "climate change" caused by private companies' carbon emissions. Two of those decisions, by federal courts of appeal, found that such actions may proceed, while the third, by a lower federal court, ordered such a lawsuit dismissed.

Attorneys Beware: Not All Communications With Firm General Counsel Are Privileged

By Amit Shah |

What if you are working on a matter and realize you committed malpractice? After your initial panic, you may want to seek advice on how to deal with the situation.

Business Interest Valuation in Buy-Sell Agreements

By William E. Harris |

What is a closely held company worth? What about a minority share in that business? Seems like a fairly straightforward question. But if you have ever been involved in a business dispute, you know that the value question is often not as straightforward as one would think.

Commercial Truck Driver Cases

By James Ronca |

Careless driving by those operating commercial vehicles, principally tractor-trailers, can cause devastating accidents -- 20 or even 30 vehicles involved, multiple deaths and many severe injuries.

Preparing Effective Oral Arguments for Appellate Courts

By Howard J. Bashman |

The Legal Intelligencer recently hosted a Continuing Legal Education course titled "Winning Litigation Strategies" at which I was fortunate to have been one of the speakers in that program's appellate litigation segment. The subject of my remarks was preparing for an appellate oral argument.

How to Take the Pretrial High Road When Opponents Choose the Low One

By Bernard W. Smalley |

Increasingly, civil litigation, removed from the eyes and ears of the court, has become hand-to-hand combat at unprecedented levels.

High Court Opinion Could Spur Class Actions in Federal Courts

By Peter J. Gallagher |

On March 31, the U.S. Supreme Court released its opinion in Shady Grove Orthopedic Assoc., P.A. v. Allstate Insurance Co., a case involving a procedural issue that could have been lifted from a first-year civil procedure exam. Despite its academic underpinnings, however, the court's decision could have broad, real world implications on class action practice in federal court. Perhaps as a testimony to its importance, the decision has already been heralded as a victory by consumer advocates and criticized by big business as opening up the federal courts to an avalanche of class action lawsuits. While the true impact of the decision undoubtedly lies somewhere between these extremes, it is now clear, as even Justice Antonin Scalia acknowledged in his opinion, that it will "produce forum shopping" by "keeping the federal-court door open to class actions that cannot proceed in state court."

Benefits of Using the Mediation Caucus for Parties and Mediators

By Abraham J. Gafni |

Parties generally come to the opening joint meeting of a mediation well-prepared to present their positions to their adversaries and the mediator. Thereafter, the parties separate and meet in what is commonly called a caucus.

Senate Moves to Improve Service, Jurisdiction in Foreign Products Cases

By Thomas L. Gowen |

The Judiciary Committee of the U.S. Senate held hearings, chaired by Sen. Sheldon Whitehouse, D-R.I., in May, which addressed the issue of accountability and fairness in the civil justice system when imported products cause harm in the United States.

One Less Hurdle for Victims of Medical Negligence

By Alan Schwartz And Beth Adamski |

In its recent en banc decision in Pringle v. Rapaport, the Pennsylvania Superior Court held that the "error in judgment" charge should not be given as an instruction in a medical negligence action.

Tips for Concluding the 'Unsuccessful' Mediation

By Abraham J. Gafni |

In my July article, I discussed factors to be considered in concluding the mediation after agreement had been reached. In particular, I emphasized that the details of the understanding should be sufficiently clear to both parties and appropriately memorialized so that it will not be upset by subsequent remorse or disagreement.

After Bugosh, Pa. Products Liability Law Remains in Flux

By Stephen J. Finley Jr. |

In a June 16 per curiam opinion, the Pennsylvania Supreme Court determined that it had improvidently granted an appeal in the matter Bugosh v. I.U. North America Inc.

Bolder with Boulders: Using Geology to Construct Your Case

By Mark J. LeWinter |

Mayor Michael A. Nutter's contention that the city won't have enough cash to fund the First Judicial District unless there's state approval of a sales tax and pension deferral bill is less about fiscal reality and more about political maneuvering, City Controller Alan Butkovitz said in an interview Thursday.

Commonwealth Court Gives Green Light to Museum's Expansion

By David Romine |

The Woodmere Art Museum in the Chestnut Hill section of Philadelphia will be able to build an addition and expand its parking lot now that the Commonwealth Court ruled in its favor in a zoning appeal.

High Court Ruling Offers Hope to Lawyers Challenging Precedents

By Stephen J. Pokiniewski And Beth Adamski |

Freed v. Geisinger Medical Center represents a departure for the Pennsylvania Supreme Court in that the court overruled its own recent precedent in a case involving the admissibility of expert nursing testimony in a medical negligence case.

How Soon Do You Want Your Arbitration Award?

By Charles F. Forer |

Bob knows that his client, Anne, wants fast results when she has a dispute with her vendors. She cannot afford the costs and uncertainties of delay when it comes to fights with vendors.

An Overview of Monetary Remedies for Recovery

By William E. Harris |

In cases involving an economic loss to a plaintiff, there are usually several potential remedies available for recovery.

Concluding the Mediation When Agreement Is Reached

By Abraham J. Gafni |

There are few feelings as gratifying for both parties and mediators as reaching an agreement following an extended mediation. At that stage, the parties, who are often physically and emotionally drained, look forward to separating without considering what actions should be taken to finalize the agreement and assure that everybody fully understands its terms.

Pa. Products Liability Law: Uncertainty and Silence of the Majority

By James Ronca |

Pennsylvania jurisprudence has long gone its own way in the creation and interpretation of the law of strict liability for defective products.

The 'New' New Jersey False Claims Act: It Was Born to Run

By Marc S. Raspanti And Pamela C. Brecht |

The passage of the New Jersey False Claims Act, or NJFCA, is an integral component of New Jersey's statewide efforts to investigate and prosecute fraud involving state and federal funds.

Pa. HICPA: New Law Requires July 1 Registration; Affects Contracts

By Mary G. March |

Starting July 1, it will not be "business as usual" for Pennsylvania's home improvement contractors. Gov. Edward G. Rendell recently signed into law the Home Improvement Consumer Protection Act, or HICPA, which heralds some sweeping changes for contractors performing home improvement work.

High Court's Caperton Ruling: Opening a Pandora's Box of Recusal Petitions?

By Tracy Finken |

Does $3 million in campaign expenditures by a single litigant to elect a judge, an amount that was more than all other expenditures in that campaign combined, require that judge to recuse himself from the contributor's case in order to preserve constitutional due process?

The Medicare Secondary Payer Statute

By Charles T. Young Jr. |

Effective July 1, insurers must begin reporting to the government settlements, judgments, awards and other payments made to Medicare beneficiaries.

Documenting Your Client's Decision to Go to Binding Arbitration

By Charles F. Forer |

Bob was sick and tired of hearing his client, Anne, complain about his legal fees. It was a rather minor breach of contract case. However, Anne had instructed Bob to go full speed ahead and to defend the case "vigorously." She said that he should appeal the arbitration award against Anne, in the amount of $49,500, and get a new trial before "a jury of my peers."

Pregnancy Discrimination Revived?

By Ryan J. Fleming |

The Supreme Court's recent decision in AT&T Corp. v. Hulteen bears a striking substantive resemblance to the court's decision two years ago in Ledbetter v. Goodyear Tire & Rubber Co.

The Montco Discovery Master Program: One of a Kind in Pa.

By Wendy G. Rothstein |

In January 1996, the Montgomery County Court of Common Pleas Board of Judges passed Montgomery County Local Rule 4019 — the start of the Montgomery County Discovery Master Program. Montgomery County was the first county to have such a program and, 13 years later, it is still the only county with such a program.

Supreme Court Revisits and Reaffirms Twombly in Ashcroft v. Iqbal

By John S. Summers and Michael D. Gadarian |

As 3rd U.S. Circuit Court of Appeals Judge Richard L. Nygaard noted just last year in Phillips v. County of Allegheny, "[f]ew issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts."

When Are Directors Subject to Mandatory Arbitration Provisions?

By Abraham J. Gafni |

There is currently much discussion regarding the proposed Arbitration Fairness Act of 2009. This act would provide that no pre-dispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer or franchise dispute or a dispute arising under any statute intended to protect civil rights.

Act Now to Avoid Medicare/Medicaid Lien Headaches

By Thomas Anapol And Gregory Spizer |

Difficult clients, short deadlines and unfavorable facts are all headaches that lawyers share. So too are Medicare and Medicaid liens. For years, the plaintiffs' bar has been saddled with the responsibility to resolve these liens before finalizing a personal injury settlement. Delays in resolution routinely cost claimants months or more before money is distributed.

Value of Fringe Benefit Losses Is More Than Percentage of Earnings

By William E. Harris |

In personal injury and wrongful death matters, plaintiffs are often entitled not only to lost earnings and earnings capacity, but also to the pecuniary value of lost fringe benefits. For many employees, fringe benefits include paid time off, retirement benefits and savings plans and health care coverage for the employee and his or her family.

When Faced With an Angry Jury, Laughter May Be the Best Defense

By Michael D. Jones |

Americans are angry. That could be bad news for corporations because today's angry citizen is tomorrow's angry juror. Somehow or other, the lawyers who defend business need to reduce the fury in the courtroom before their clients get burned.

Going to Court at the Right Time After Arbitration Findngs

By Charles F. Forer |

Representing Anne, Bob demonstrated persuasively at an arbitration hearing that John, Anne’s former partner, had engaged in mischief with partnership funds by steering partnership opportunities to himself.

3rd Circuit's Standard for Class Certification Alters Legal Landscape

By Lynn R. Rauch And Kathleen Campbell |

Class action practice is a high-stakes game, with the court's class certification order often a "lethal force" that, regardless of the merits of the lawsuit, "bestows extraordinary leverage" upon plaintiffs and places substantial pressure on defendants to settle.

Achieving Diversity in the Profession: A Work in Progress

By Bernard W. Smalley Sr. |

It is now 2009, the year after A. Michael Pratt made one of the cornerstones of his year as chancellor of the Philadelphia Bar Association an effort to institutionalize support for diversity within the local legal community.

Rule 502's Attempt to Clarify Scope of Attorney-Client Privilege Waivers

By John S. Summers And Michael D. Gadarian |

In hearings before the Judicial Conference Advisory Committee on Evidence Rules, a consultant to a Fortune 20 company testified that the company incurred $13.5 million in legal fees simply to review documents for privilege in response to a Department of Justice subpoena.

3rd Circuit Loses Its Way in 'Serbonian Bog' of Medicaid Law

By Stephen A. Feldman |

Last month, the 3rd U.S. Circuit Court of Appeals issued a decision that ran roughshod over clear congressional intent, ignored without comment its own precedent and exalted form over substance in a manner that permits wealthy families to shift nearly all of their long-term care expenses onto the beleaguered state medical assistance program.

Re-evaluating First-Party Liability Under Pa.'s Dram Shop Law

By Timothy E. Gilsbach And Erin D. Gilsbach |

With the holiday season in full swing, most individuals are focused on perusing after-holiday sales for late gifts and writing grocery lists for New Year's parties. By necessity, however, bars, restaurants and other establishments that serve alcohol prepare for the holidays in a different way — by training employees how to spot everything from an intoxicated patron to a fake ID.

FASB May Expand Obligations to Disclose Contingent Loss Liabilities

By Alexandra C. Gaugler and Christopher A. Iacono |

The Financial Accounting Standards Board, or FASB, proposed an amendment to FASB's Statement No. 5, Accounting for Contingencies. The proposed amendment is in response to concerns from investors regarding companies' disclosures related to loss contingencies in financial statements. The amendment, if adopted, would substantially expand companies' obligations to disclose contingent loss liabilities, including litigation loss contingencies.

Breast Cancer Claims: Staying Current on Trends, Medical Technology Is Key

By Howard J. Levin |

As breast cancer screening evolves in the digital age, so do the issues confronting lawyers. Advances in medicine offer women more effective screenings with greater opportunities for early detection and diagnosis, and as digital screening becomes more widely available, it has been asserted that cancer is being detected earlier and with greater accuracy.

The Exxon Decision: Another Bad Call on Punitive Damages

By Shanin Specter And Charles L. Becker |

Punitive damages have been under attack in the U.S. Supreme Court for more than a decade. Beginning with BMW of North America Inc. v. Gore, and most recently with Philip Morris USA v. Williams, the court has announced due process standards that limit the ratio between compensatory and punitive damages and the types of evidence that a jury may consider.

Effectively Using Technology in a Med Mal Trial

By Larry Cohan |

A few years ago, many lawyers lacked the fundamental tools to effectively use technology to present evidence in a complex medical malpractice case. Records were blown up, mounted on boards and manually held up for the jury's review.

Federal Pre-emption: Another Corporate Bailout

By Sol Weiss |

On Nov. 3, the U.S. Supreme Court will hear oral argument in Wyeth v. Levine, a seminal case that could limit mass tort litigation in state courts.

Proposed Federal Rule of Evidence 502

By James E. Kurack Jr. |

The increasing volume of electronically stored information the average business maintains makes businesses vulnerable to the inadvertent disclosure of privileged communications.

New Laws Provide Opportunities, Risks for Land Use Planning Decisions

By Raymond P. Pepe |

The General Assembly enacted major revisions to Pennsylvania laws governing the timing, manner and scope of review of claims that municipal actions are procedurally invalid.

Decisions Up Stakes for Managing E-Discovery Cases

By Benjamin R. Barnett and Philip N. Yannella |

The consequences for failing to properly manage e-discovery in complex litigation continue to rise. Recent court decisions are notable both for the courts' readiness to specifically identify the errors of outside counsel as well as the severity of the sanctions imposed for such failures.

The Right of a Non-Signatory to Enforce an Arbitration Clause

By Abraham J. Gafni |

In several of his articles in The Legal Intelligencer dealing with alternative dispute resolution, Charles Forer has addressed the rights of parties to a contract to demand or refuse to submit to arbitration.

Court Clarifies Use of Measured Mile Theory, Notice of Claims Provisions

By John k. Gisleson and David Holliday |

For more than 20 years, it has been accepted practice in construction litigation to measure damages through the "measured-mile" method of damages calculation.

Measuring the 3rd Circuit Rulings Against the U.S. High Court

By Howard J. Bashman |

The U.S. Supreme Court, in its last term, issued 67 signed opinions in argued cases. None of those cases reached the Supreme Court directly from the 3rd U.S. Circuit Court of Appeals.

Curtailing Review of Post-Trial Motions in State Court

By Howard J. Bashman |

To preserve certain issues for appellate review after a civil trial, it is necessary to file post-trial motions. The need to file post-trial motions to preserve certain issues for appeal applies, to varying degrees, in both the Pennsylvania state court system and the federal court system.

Lawyers Have Love-Hate Bond With Limited Appellate Review

By Abraham J. Gafni |

One feature of arbitration that has been viewed both favorably and unfavorably by litigants has been the limited appellate review allowed of an arbitrator's award.

Benefits of Increasing the Visibility of an Appellate Loss

By Howard J. Bashman |

When confronted with an adverse ruling of the Superior Court of Pennsylvania, it may come as some consolation to the appellate advocate that the Superior Court has chosen to issue the decision as an unreported, non-precedential opinion.

The Keys to Cross-Examining Any Expert Witness

By James Ronca |

The cross-examination of opposing experts is one of the great challenges in the art of trial advocacy. It is an essential element of persuasion. Because of recent changes in jurors' attitudes, many lawyers have reconsidered their approaches to various aspects of jury trials in injury or death cases. In that vein, we should reconsider the manner in which we cross-examine experts and what we hope to achieve by that cross-examination.

Benefits of Having Your Appellate Lawyer at Trial

By Howard J. Bashman |

What has happened in the trial court will, in almost every case, determine what happens on appeal. Thus, cases that justify having an experienced appellate advocate working on the appeal may also benefit significantly from having that same experienced appellate advocate involved in assisting with especially important trial court filings.

Establishing Liability and Punitive Damages Using FMCSR

By James Ronca |

Ever since the 3rd U.S. Circuit Court of Appeals' decision in Burke v. Maassen, 904 F.2d 178 (3d Cir.1990), plaintiffs have been reluctant to pursue punitive damages based upon violations of the Federal Motor Carrier Safety Regulations.

Arbitration Can Limit Access to Third-Party Information

By Abraham J. Gafni |

Parties often opt for arbitration in the belief that they are selecting an adjudicatory process, which may be less formal but will generally track court proceedings.

Does Corporate Liability Insurance Cover Global Warming Claims?

By Lorelie S. Masters, Matthew L. Jacobs and Nicholas O. Stephanopoulos |

Like many issues before it, global warming has begun to cross over from the public policy arena into litigation.

In Pre-Emption Cases, Consumer Rights Hang in the Balance

By Sol Weiss |

All eyes are on the U.S. Supreme Court, which accepted six cases dealing with pre-emption, a legal defense that prevents consumers from bringing lawsuits for harm caused by defective products. It's big business versus individual rights.

Keeping Confidentiality: Using Experts After Mediation Ends

By Charles F. Forer |

Anne's attorney, Bob, always knew that mediation is a can't-lose proposition. Either the mediation leads to a settlement or, if no settlement, everyone walks away with a better understanding of the strengths, weaknesses, theories, strategies and positions of all sides.

Electronic Case Filing Alters 3rd Circuit Protocol

By Howard J. Bashman |

Last month, the 3rd U.S. Circuit Court of Appeals began its public implementation of electronic case filing. Lawyers who regularly handle 3rd Circuit appeals are likely to have already noticed two major changes.

A Look at Recusal Issues Facing Pa. Supreme Court Justices

By Howard J. Bashman |

Late last month, Gov. Edward G. Rendell nominated former Pennsylvania Commonwealth Court President Judge James Gardner Colins to fill the remaining vacancy on the Pennsylvania Supreme Court until January 2010, when a duly elected justice will assume that spot on Pennsylvania's highest court.

Don't Raise Too Many Issues on an Appeal in Bad Faith

By Howard J. Bashman |

As anticipated, the Supreme Court of Pennsylvania ended 2007 by issuing a plethora of opinions. This occurred because three of that court's justices were leaving, to be replaced by two newly elected justices and one vacancy that Pennsylvania's governor and General Assembly must combine to fill until the next judicial election occurs nearly two years from now.

Vioxx: Changing the Face of Pharmaceutical/Mass Tort Litigation

By Sol Weiss, David Jacoby and Gregory Spizer |

Merck recently agreed to settle thousands of heart attack and stroke cases surrounding Vioxx, its highly profitable arthritis medication — allowing both sides to win by agreement, rather than face uncertainties of trial.

Complying With the Requirements of the Arbitration Agreement

By Abraham Gafni |

In past articles, there has been a repeated emphasis on the need for parties to recognize that arbitration is, in effect, a form of litigation created and controlled by them.

How Will Changes in Membership on Pa.'s Appellate Courts Affect You?

By Howard Bashman |

Last month, Pennsylvania voters elected two new justices to serve on the Supreme Court of Pennsylvania and three new judges to serve on the Pennsylvania Superior Court. In January 2008, those individuals will begin to serve on the courts to which they have been elected.

Multijurisdictional Foreclosure Litigation and the Foreclosure Explosion

By Matthew B. Weisberg |

In January 2006, 103,540 properties nationwide entered some stage of foreclosure. This was a 27 percent increase from the month prior and a 45 percent increase from January 2005.

When Is a Brief Not a Brief Under Pa.'s Appellate Rules?

By Howard J. Bashman |

One particularly useful piece of advice that I received early in my career as a lawyer emphasized the importance of knowing and understanding the operation and intricacies of the rules of procedure that apply in the courts in which you are representing clients.

Some Suggestions for Trying an Arbitration Case

By Abraham J. Gafni |

In recent articles, I have discussed issues that should be considered by parties contemplating the resolution of their disputes through arbitration.

The Case of the Broken Pinkie Toe, on Appeal

By Howard J. Bashman |

Last week, while I was sitting in the Philadelphia courtroom of the Superior Court of Pennsylvania waiting to orally argue an appeal that one of my clients had taken, I observed the oral argument of a separate appeal in another case that perhaps heretofore had only been imagined in the minds of law school casebook writers.

Is the Superior Court at Full Strength Only for Appearance’s Sake?

By Howard J. Bashman |

August 2007 will be noted as one of the worst months in the history of Pennsylvania’s state judicial system.

What Is the Actual Cost of the Class Action Fairness Act?

By Linda S. Mullenix |

As corporate defendants reflexively remove all state class actions into federal court, their attorneys might pause to reflect that unsuccessful attempts to remove under the federal Class Action Fairness Act might result in an award of plaintiffs' costs and attorney fees, or worse.

Who Makes the Decision of Whether and How to Arbitrate?

By Abraham J. Gafni |

Two months ago, in my ADR article in The Legal, I stated that I would follow up with a discussion of the circumstances under which arbitrability might be determined.

Are You Filing Enough Separate Notices of Appeal?

By Howard J. Bashman |

On July 31, a three-judge panel of the Superior Court issued a five-page decision in an appeal captioned Commonwealth of Pennsylvania v. C.M.K.

Be Aware of Agreements So You
Don't Lose Your Right to Arbitrate

By Abraham J. Gafni |

Last month in his ADR article in The Legal, Charles Forer discussed how disclosure of mediation documents to a testifying expert resulted in a court decision to remove the expert and require that the disclosing party secure an expert to whom the confidential information had not been disclosed.

Creating an Arbitration Procedure
For Holocaust Insurance Claims

By Abraham J. Gafni |

Articles appearing in this column in recent years have emphasized that a significant benefit of arbitration is that parties are not constrained by the one-size-fits-all procedures imposed by courts; rather, they may fashion a process specifically designed to deal with the special situation and issues to be arbitrated.

What Is the Functus Officio Doctrine
In Arbitration Actions?

By Abraham J. Gafni |

Over the past six months I have addressed Issues that Should Be Considered by Parties Before Agreeing to Arbitrate. (See The Legal of June 19, Aug. 21 and Oct. 16.) In these articles, I have focused on decisions parties should make pre-arbitration so that neither they nor the arbitrator are in doubt about the arbitrator's obligations and authority.

Issues That Should Be Resolved
Before You Arbitrate: Part I

By Abraham J. Gafni |

When parties turn to arbitration to resolve their dispute, they assume that they have opted for an alternative to court litigation in which the procedures to be followed are not only simple, but understood by all.

Mediators Can Best Help Those Who Help Themselves

By Ruth D. Raisfeld |

It is widely estimated that 90 percent of cases settle before trial, but generally after long, expensive and frustrating motion practice, discovery and court appearances. With civil dockets growing and agencies and courts facing budget constraints, the pressure on parties to settle has resulted in more tribunals ordering mediation and more litigants opting for mediation voluntarily. To make it a more effective process, litigators need to prepare as thoroughly for mediation as they do for litigation.