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?
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?"
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Under Pennsylvania law, a physician may be held liable only under very limited circumstances for injuries sustained by nonpatients.
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).
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.
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.
Violent crime is on the rise nationally in the United States, and is most prevalent in big cities, including Philadelphia.
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.
The different roles of arbitrators and mediators are well recognized in dispute resolution.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Increasingly, attention has been drawn by courts and commentators to arbitrators' authority and the scope of awards they may issue.
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.
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.
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.
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.
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.
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.
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.
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.
The Pennsylvania Supreme Court has decided two cases important to business owners and operators of recreational programs and facilities.
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.
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."
From litigating pharmaceutical and medical device cases to litigating worker safety and motor vehicle cases, pre-emption is an issue.
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
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.
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.
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.
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.
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.
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.
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.
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.
To what extent may mediation impact an award of attorney fees as part of the costs in litigation?
Compulsory arbitration cases historically posed problems for diverse defendants seeking to remove a personal injury case to federal court.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.