I’m a trial lawyer for injured people and businesses at The Beasley Firm. Founded in 1958, we have recovered over $2 billion for our clients through hundreds of verdicts and settlements in excess of $1 million. We’re listed in Super Lawyers, Best Lawyers in America, U.S. News’s Top Lawyers, [...]
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I write this blog primarily for lawyers and others interested in the law. If you’re looking for a lawyer, start with my legal services page or call my office at (215) 931-2634.
I represent individuals in personal injury and medical malpractice lawsuits, and businesses in contingent fee litigation. I also represent clients in serious injury or wrongful death mass torts and class actions, like with Actos and bladder cancer, Pradaxa bleeding side effects, and the erosion of implanted vaginal mesh.
Pennsylvania lawyers may be interested in my Pennsylvania Civil Discovery book. New readers should read my most popular law blog posts.
Big Law Firms And The Crack Dealer Business Model
Four and a half years ago, I wrote a brief post criticizing Thacher Proffitt’s hypocritical plan to fire their associates while giving under-performing partners the opportunity to “market” and “retool” themselves.
It didn’t work. A year later, the 160-year-old law firm was dead, a month after I had written about how large corporate firms were risky, transient businesses that will slough off the associates at the first sign of trouble. A year later, I came back to the subject of the broken social contract between young lawyers and their law firms, again noting that “firms show no loyalty to their young lawyers and so receive none in return.”
I thus wasn’t the least bit surprised by this recent explanation of how the mighty Dewey LeBoeuf came to its own demise:
A shared sacrifice ethos did not exist at Dewey. Mr. Davis subscribed to a “barbell” compensation system. On one end were the so-called rainmakers with big books of business who were lavished with multimillion-dollar, multiyear guarantees. Dewey’s stars were paid as much as $10 million a year. (Mr. Davis himself earned about $4 million a year, but cut his 2011 salary to $300,000.)
On the other end of the barbell were partners who worked on the court cases and deals brought in by the rainmakers. These partners were paid about $300,000, creating a dynamic where the highest-paid partners were making 30 times more than the most junior ones.
At Skadden, by comparison, the highest-paid partner makes no more than five times the lower-paid ones. One former partner called the arrangement “something closer to feudalism than a true partnership.”
They were all supposed to be partners, but the partner who can schmooze at cocktail parties and on the golf course took home $10 million while the partners who actually “worked on the court cases and deals” — you know, the ones who practiced law — took home $300,000? And they were surprised when the whole thing collapsed? Continue reading
The Embarrassing Attempt To Intervene In The PA Voter ID Lawsuit
If you’ve been following the press on Pennsylvania’s new voter identification law, then you’ve likely already heard about the plaintiffs. Joyce Block, an 89-year-old woman, who committed the ‘crime’ of getting a marriage license in Hebrew and then registering to vote in her married name; 84-year-old Nadine Marsh, born near Pittsburgh and has lived her whole life in Pennsylvania, but whose birth certificate can’t be found; and, the worst of the worst, the ringleader, 93-year-old Viviette Applewhite, who worked as a welder in World War II, who marched with Martin Luther King, and who has 18 grandchildren, great-grandchildren, and great-great grandchildren, and who for no good reason has been denied photo identification by the Commonwealth of Pennsylvania.
These are some of the people on whose behalf a group of public interest organizations, including the American Civil Liberties Union (ACLU) of Pennsylvania, the Public Interest Law Center of Philadelphia (PILCOP), and the Advancement Project, and the Washington, D.C. based law firm Arnold & Porter have filed a lawsuit in the Commonwealth Court of Pennsylvania seeking to have Pennsylvania’s Photo ID voting law voided. The law, one of Governor Tom Corbett’s signature bills, is one of the strictest “voter ID” laws in the country, forbidding all kinds of identification — from utility bills, to Veteran IDs, to student IDs without an expiration date, out of state driver’s licenses — in favor of only a very limited list of acceptable identification, including driver’s licenses, state issued photo identification, student IDs issued by Pennsylvania schools with expiration dates (only a handful of schools have them) and passports. The Committee of Seventy has some details on what works. Expired passports, military dependent, or government employment IDs? They’re all obviously you, expired or not, but none of them work under PA’s new voter ID law.
Supporters of the law, which will cause havoc at the polls for legitimate voters by adding several steps to the voting process, haven’t been able to provide any examples of anyone actually voting more than once (or voting under the wrong name) in Pennsylvania, but the General Assembly and Governor Corbett figure the confusion created by the law and its onerous requirements would deny the vote to college students, the impoverished, and the elderly, so they fought hard for it while slashing funding for Child Care Works, the T.E.A.C.H, scholarship program, Pennsylvania Pre-K Counts and the Head Start Supplemental Assistance Program.
But it’s a truism of American politics that, for every bad idea, there’s a half dozen people who want to take it even further, and the dishonor this time falls to state Rep. Thomas Killion (R., Chester) and several other individuals who, represented by Buchanan, Ingersoll & Rooney, filed a petition in Commonwealth Court to intervene in support of the new law. Continue reading
Doing Business On A Handshake
As regular readers know, I’ve spent the last two weeks trying a case with one of our firm’s of-counsel, Francis Malofiy. Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.
Post-verdict discussions with jurors often reveal a handful of surprising and insightful comments that sometimes make me re-think how I tried the case. Jurors tend to take their duties very seriously, and so lawyers can usually jump right into detailed questions about the facts and what they thought about various issues. We were fortunate to have a number of invigorated and candid jurors who were happy to talk to us about the case.
In our case — in which our client alleged that he was frozen out of his ownership interest in an industrial business after spending two years building the business’ physical plant — there were a lot of issues, from the disclosure requirements for SBA Loans to the right type of saw for a particular cutting machine, but one issue loomed large: the lack of a written agreement. We had documents (including one signed by all the parties) supporting our claims, they had documents (signed by them, but not our client; we alleged they were created after the lawsuit was filed) supporting their claims, but there was no single document that purported to be the agreement among the parties. It was mostly our client’s word against the defendants’ word, with each side portraying radically different circumstances surrounding the agreement, chiefly differences over the work our client did in those two years. Continue reading
Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case
It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.
For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.
There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroom: Continue reading
The Firefighter’s Rule And The Kensington Warehouse Fire Lawsuit
Yesterday the family of firefighter Daniel Sweeney, who along with Lt. Robert P. Neary died in a fire at the derelict Buck Hosiery warehouse at the corner of Jasper and York in Kensington, filed suit against the owners of the building, Yechiel Lichtenstein and Nahman Lichtenstein, and their various companies involved.
Anyone who lives around Philadelphia is undoubtedly familiar with the story, which has generated a considerable amount of outrage, but I’d be remiss if I didn’t point you to Hidden City Daily’s coverage. Note that the first story there about the condition of the warehouse, “Passing the Buck,” was originally posted ten days before the fire, and it quotes Jeff Carpineta, president of the East Kensington Neighborhood Association, worrying about the dangers posed by the building and the possibility of a fire. The building had racked up considerable tax liens, and the Lichtensteins themselves couldn’t even identify who was responsible for monitoring the property.
To put it another way, no one was surprised by the fire, and the owners knew of the buildings poor state and frequently break-ins, but hadn’t done anything about it. If I were part of the Sweeney family, I’d want justice, too.
In most states, the Sweeney’s lawsuit would be promptly dismissed. The ”firefighter’s rule” (sometimes called the “police officer’s rule” or the “rescue rule”) “bars an injured public-safety official from maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for bringing the officer to the scene of a fire, crime, or other emergency where the officer is injured.” Higgins v. Rhode Island Hospital, 35 A.3d 919 (R.I. 2012)(dismissing lawsuit by firefighter). That’s the majority rule across the United States. See, e.g., Babes Showclub, Jaba, Inc. v. Lair, 918 NE 2d 308, 313 footnote 3 (Ind. 2009)(recounting the many ways firefighters, police officers, paramedics and emergency medical technicians have not been able to recover compensation); but see Christensen v. Murphy, 296 Or. 610, 678 P.2d 1210, 1218 (1984) (Oregon abolishes the fireman’s rule at common law).
In the tri-state area, New Jersey used to recognize the firefighter’s rule until 1993, when it was abrogated by statute. See Ruiz v. Mero, 189 N.J. 525, 917 A.2d 239, 247 (2007). For Delaware, as far as I can tell, only one trial court has ever addressed the issue, and it applied the firefighter’s rule. Carpenter v. O’Day, 562 A.2d 595 (Del. Sup. Ct., 1988).
In Pennsylvania, the courts have taken a nuanced approach, applying the rescue rule in some circumstances but not others. Continue reading
Valuation of Minority Shareholder Interests In Oppression, Fiduciary Duty, And Contract Cases
Yesterday afternoon, the defendants in my trial dumped a twenty-one page brief on me, requesting the Court preclude our business valuation expert from testifying, arguing that we had “a bogus valuation expert” whose “report is a sham” describing a “topsy-turvy world” in support of “Plaintiff’s belief that he can obtain a windfall through a whimsical and inflated valuation of this business” — and that was all just in the introduction.
It seems somebody needs to read #4 on my advice for litigators.
Naturally, within less than a day I filed a detailed response, explaining why our expert was fine, and why the appropriate valuation of a minority shareholder interest in a company where the shares aren’t regularly traded is “the shareholder’s proportionate interest in the company as a whole valued as a going concern according to accepted business practices.” As a service to any other plaintiff’s lawyers out there in a similar case, I leave you with an edited excerpt from my brief.
In Pennsylvania, business damages ‘need not be proved with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences.’ Hawthorne v. Dravo Corp., Keystone Division, 352 Pa. Super. 359, 376, 508 A.2d 298, 307 (1986), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987); Delahanty v. First Pennsylvania Bank N.A., 318 Pa. Super. 90, 119, 464 A.2d 1243, 1257 (1983). ‘Thus, the law does not demand that the estimation of damages be completely free of all elements of speculation[,]‘ Delahanty, 318 Pa. Super. at 118, 464 A.2d at 1257, and the fact-finder ‘may use a measure of speculation in estimating damages.’ Penn Electric Supply Co. Inc. v. Billows Electric Supply Co. Inc., 364 Pa. Super. 544, 549, 528 A.2d 643, 645 (1987). Any doubt or uncertainty as to the precise amount of damages is construed against the breaching party or wrongdoer. Atacs Corp. v. Trans World Communications Inc., 155 F.3d 659, 669 (3d Cir. 1998) (citing Delahanty and applying Pennsylvania law).
Pennsylvania law plainly provides that shareholders forced or frozen out of their interests are entitled to that “fair value” of their interests. This “fair value” approach is consistent with breach of fiduciary duty precedent (i.e., Viener v. Jacobs, 2003 PA Super 324, 834 A.2d 546 (Pa. Super. Ct. 2003)) and with the dissenters’ rights provisions of the Pennsylvania Business Corporations Law (“BCL”) that plainly entitles dissenting shareholders to “payment the fair value of [their] shares.” 15 Pa.C.S. § 1571–1580. The BCL includes similar provisions for limited partnerships and for LLCs.
Across the United States, the overwhelming majority rule regarding the “fair value” of minority interests in private companies derives from this analysis by the Delaware Supreme Court: Continue reading
A Lawyer’s Judgment Tends To Dull If Not Exercised Frequently
I’m on trial this week (a dispute over the ownership of a business), so posting will obviously be light for the next two weeks. But I couldn’t let this quote from an article about Samuel L. Jackson slip by:
William Friedkin, who directed Jackson in “Rules of Engagement,” told me: “Sam is a director’s dream. Some actors hope to find their character during shooting. He knows his character before shooting. Sam’s old-school. I just got out of his way. I never did more than two takes with Sam.” Friedkin said that some people say Jackson works too much, but he dismissed actors who wait around for “Hamlet.” “You take what you can get,” he said, “to keep your engine tuned. An artist doesn’t burn out with age because he works too much. Working hones his craft.”
So it is with trial lawyers. You need to get back into the courtroom to keep your engine tuned, to hone your craft.
Some parts of trial are like riding a bike. You won’t forget how to tell if a statement is hearsay (assuming you knew how to tell in the first place).
But situations change quickly in a courtroom and a lawyer’s judgment tends to dull if not exercised frequently. Even in what seems like the most routine witness, there will always be adverse rulings from the judge or unexpected statements from a witness, and there’s a particular skill in figuring out what to do with that change immediately, a skill that simply can’t be taught or practiced. You just have to do it, and do it often.
Defective Remington Triggers Under Fire Again, Still Not Recalled
Two weeks ago, NBC’s Rock Center aired an investigative report questioning the safety of the Common Fire Control of over 20 million Remington firearms, including the best-selling Sportsman 12 shotgun, the 870 shotgun, and the 742 semi-automatic rifle. About two years ago, CNBC did a similar report on the Remington Model 700 bolt-action rifle. Odds are, if you’ve ever been out with anyone shooting a rifle or a pump shotgun, you’ve been around one of these. If you’re in law enforcement, then you’ve been around them on a weekly basis.
And there’s a big problem with them. A thousands of complaints and over one hundred thirty-five lawsuits problem. These firearms go off without the trigger being pressed, even when the safety is on.
As a plaintiff’s lawyer, seeing a news story about problems with Remington gun misfires is like seeing a story on the dangers of old tires: it’s not news to us, it’s something we talk about frequently, and litigate often as well. The trial lawyers association has a whole litigation group dedicated to firearms and ammunition dangers.
I’m not as familiar with the shotgun issues, but Remington Model 700 misfire lawsuits are so common that lawyers can practically cut-and-paste the relevant pleadings and briefs. (If you’re a lawyer representing a Remington malfunction victim, be sure you read this brief on similar incidents from the Montes case.)
The problem is simple, but takes a minute to explain. The Model 700 (and its variants, the ADL, BDL, CDL, and Safari, as well as the newer Model 710 and Model 770) is based on Merle H. Walker’s “firing mechanism” patent 2,514,981, patented in 1950. In the design, the trigger the operator sees isn’t really the trigger — the real trigger is a piece called the “connector” that’s inside the gun and held against the trigger by a spring.
The Remington-Walker’s ‘trigger’ is not the piece you put your finger on. The part that acts as the trigger under the sear is actually the connector which is ‘flexibly connected’ to the trigger body. The trigger return spring pushes the connector which then pushes the trigger body into position under the sear. The connector offers a complication that is not needed in the trigger. The addition of the connector only adds to the complexity of what is a very simple and amazingly reliable mechanism when its parts are limited to only what’s necessary to do the job.
Is a mechanism that’s called upon to return one lever with one spring more reliable than a spring pushing on an intermediary part and then the lever? Of course it is. The fewer parts, the simpler the mechanism, especially when dealing with simple levers. With the re-positioning of the trigger-connector required after each shot, in the presence of recoil and powder residue and debris, the answer becomes even more certain. More parts means more complications without benefits.
Those “complications” cause a couple problems in the actual use of the Remington Model 700, which Remington itself broke down into Fire on Bolt Closure, Fire on Bolt Opening, Fire on Safe Release, and Jar Off. “Jar Off” is a standard industry term for a firearm discharging when struck or dropped. The rest mean what you think they mean: someone was opening or closing the bolt, or simply releasing the safety when, boom, the gun went off. Continue reading
The Difference Between Scientific Evidence And The Scientific Method
Scientific evidence plays a crucial role in virtually all mass torts cases (whether prescription drugs, environmental exposures, or consumer products), and so, when the National Research Council and the Federal Judicial Center published the Third Edition of the Reference Manual on Scientific Evidence, lawyers took note. Apart from Supreme Court opinions — which these days often raise more questions than they answer, which is partly why Daubert is still the leading case twenty years later — the Manual is likely the primary reference federal judges use to guide them in deciding what scientific evidence they allow into a jury trial.
Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.
Defense lawyers think judges too easily allow in “junk science” from plaintiffs, citing the silicon breast implant litigation, which resulted in over $3 billion in settlements and compensation for autoimmune injuries that most scientists now agree weren’t caused by the implants. Plaintiff’s lawyers, in turn, think the silicon implant case is the exception that proves the rule, and that courts these days more frequently use Daubert and Frye to destroy plaintiffs’ cases by wrongly excluding from trial valid scientific and medical testimony (here’s an example involving vinyl chloride and cancer, and another involving Tylenol and liver damage, and don’t forget Kumho Tire’s indefensible exclusion of an eminently qualified tire tread separation expert), while allowing defendants to bring in all kinds of unscientific nonsense (like the natural forces nonsense in shoulder dystocia lawsuits that’s allowed everywhere except New York).
(In the criminal context, prosecutors complain about the “CSI Effect,” the claim that jurors today expect forensic evidence in every case, while criminal defense lawyers counter that the forensic evidence offered is often garbage and speculation from people with a diploma mill degree.)
As far as I can tell, mostly defense lawyers took note of the Reference Manual publicly, and they took a starkly negative view of it. Nathan Schachtman says “there is a good deal of equivocation between encouraging judges to look at scientific validity, and discouraging them from any meaningful analysis by emphasizing inaccurate proxies for validity, such as conflicts of interest.” David Oliver has been on the warpath, claiming “the fix is in” and most recently criticizing the chapter, “How Science Works,” written by David Goodstein, Professor of Physics and Applied Physics at CalTech.
Oliver complains:
Avoiding any pretense of humility the Reference Manual dismisses as woefully naive and inadequate those claims about the essence of the scientific endeavor that were ingrained in us in school. … Unsurprisingly the Reference Manual, operating on the view that objectivity is an illusion, that you can never prove anything is false and that you can never prove anything is true (“the apparent asymmetry between falsification and verification that lies at the heart of Popper’s theory thus vanishes”) and thus without any track to follow, quickly careens into post-modernism. … So all the great thinkers were wrong. Objectivity is out. Testability is out. Keeping an open mind is out. Skepticism is right out. The appeal to authority is not a logical fallacy but fundamental to science.
I think Oliver has misunderstood the purpose of the chapter. Continue reading
How To Excel At The Basics As A Young Litigator
A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.
Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”
1. What Not To Work On: Outwitting Witnesses At Trial
I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.
Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.
Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?
2. “Turn Every Goddamn Page”
There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:
For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaperman once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”
“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.
How do you do that? Continue reading
