Philadelphia Trial Lawyer Max Kennerly : Business and Commercial Litigation : Civil Attorney : The Beasley Firm : Philadelphia Pennsylvania

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It's no surprise that trial lawyers are often drawn to politics -- politics and trials both hinge on facts, credibility and persuasion, and both are swayed by similar strategies, tactics, persistence, diligence, insight and, unfortunately, fabrications and passions.

That is part of why, this blog, unlike most practicing attorney blogs, often jumps into politics. I believe politicians and political strategists have a lot to teach trial lawyers, or at least do a lot from which trial lawyers can learn.

Or re-learn.

Two months ago I made a prediction that I did not see made anywhere else: that Sarah Palin was announced as John McCain's vice presidential running mate as part of a bait-and-switch strategy designed to disrupt the election narrative (in which John McCain was slowly losing the election), shore up social conservative support for McCain, and change expectations for his running mate.

I had many reasons to reach that conclusion, some of which you can read at the link, but chief among them in my mind was how the selection didn't make any sense.

Sure, a number of pundits identified plausible reasons for the selection, including discontent among former Hillary Clinton supporters, but, long before the election, polls have consistently shown that most voters are both very concerned about electing a president over the age of 65 and uncomfortable with the idea of a female president. Add to those existing preconditions the fact that the McCain team had apparently done no vetting or other investigation of Palin, who had minimal experience, was under investigation for ethical violations, and had not shown any understanding of national politics, and you had, at least in my interpretation, a preponderance of evidence suggesting all was not as it appeared to be.

Put another way, had the vaunted Karl Rove political machine really chosen, without any detailed investigation, an unqualified candidate the voters were predisposed not to like? And had they done so while also conceding their strongest argument, that McCain's experience trumped Obama's vision?

Apparently so. I was wrong.

Here's how Newsweek's embedded reporters described it after the election:

Pawlenty, the popular governor of a swing state the Republicans badly needed to win in November, was the safe choice. Salter especially liked Pawlenty's salt-of-the-earth qualities.

But McCain didn't want the safe choice. A top adviser would later recall that telling McCain that Pawlenty was "safe" was "like guaranteeing" that McCain would not pick him. Prodded by Schmidt and Rick Davis, McCain began asking about Palin, a first-term governor who had shaken up the Alaska political establishment by taking on her own party elders, who was fearless and defiant, who was … a little bit like McCain.

There was no strategy: McCain, Schmidt and Davis were thinking, as Stephen Colbert would say, with their guts.

In one sense, there is no need for self-reflection, as the end result was the one I wanted, so does it really matter how we got there? Yet, every trial lawyer has had a trial end successfully but not in the way they imagined. After they fought hard, trapped the opposing party in their own contradictions, marshalled their strongest evidence and highlighted their opponent's weakest evidence, the trial lawyers interviewed the jury afterwards and discovered the case the jurors decided bore little resemblance to the case the lawyers argued.

Sure, all the facts were the same, but in the end the jurors took the issues the lawyers thought were, respectively, dispositive and tangential, and flipped them. That's as much as reason to re-evaluate how you tried the case than if you had lost it.

So it's time to re-learn a lesson taught best to me by my brother, the theoretical physicist and poker player, who a while back related to me this strategic mental exercise:

Q: It's early in a no-limit Texas Hold 'Em tournament.  The last cards you've played to showdown were pocket kings for a flopped set that turned a boat.  Since then you've folded every single hand for the last 45 minutes.  From early position, you open-raise to 4 times the big blind with about 45 blinds behind.  What is your opponent thinking?

A: Nothing.

Sometimes, your complicated feigns are irrelevant and your opponent isn't feigning anything at all.

Sometimes, they're just thinking from the gut.

Next time you ask yourself, "what are they thinking?", consider that the answer could be "nothing."

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The United States District Court for the Eastern District of Pennsylvania punts an easy one:

Counts I and II of the complaint arise under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601, et seq., Home Ownership and Equity Protection Act of 1994 ("HOEPA"), 15 U.S.C. § 1639 and Regulation Z of the Federal Reserve Board ("Regulation Z"), 12 C.F.R. §§ 226.1 et seq. Plaintiff seeks rescission of the loan transaction and actual and statutory damages. ...

Under TILA, a borrower has the right to rescind certain consumer credit transactions [either until midnight of the third business day or, if the consumer was not provided the rescission forms, within 3 years or delivery of those forms] ...

Regulation Z requires the creditor to deliver two copies of the notice of right to rescind to each consumer entitled to rescind and specifies the information that the creditor must include in the notice.

...

Defendants believe plaintiff's rescission claim is untimely because the three-day limitations period under 15 U.S.C. § 1635 (a) applies and plaintiff failed to notify them of her intention to rescind until January 9, 2007. Defendants claim to have complied with 12 C.F.R. § 226.23 (b) (1) by delivering to plaintiff two copies of the required rescission form on January 22, 2004. ...

Defendants support their motion for partial summary judgment with evidence that plaintiff received two copies  of the required rescission form. Exhibit C, attached to Defendants' memorandum of law, is a rescission form dated January 22, 2004 and titled "Notice of Right to Cancel." ... Ms. Gonzales' signature appears below the following sentence: "The undersigned each acknowledge receipt of two completed copies of this Notice of Right to Cancel." Plaintiff does not deny it is her signature.

Counsel for plaintiff contends that, contrary to the written acknowledgment, only one copy of the Notice of Right to Cancel "wound up in the hands of Plaintiff, the borrower." (Plaintiff's Memorandum at 13.) TILA addresses the effect of written acknowledgments of receipt, such as the Notice of Right to Cancel  [*7] produced by Defendants:

Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this title ... does no more than create a rebuttable presumption of delivery thereof.

15 U.S.C. § 1635 (c). Plaintiff's written acknowledgment of the Notice of Right to Cancel creates the presumption that plaintiff received two copies of the document. ...

On a motion for summary judgment, the nonmoving party must come forward with evidence setting forth specific facts showing that there is a genuine issue for trial. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Plaintiff has failed present evidence sufficient to rebut the presumption of delivery. Absent from the record is any sworn statement from Ms. Gonzales or other witness that plaintiff received one copy rather than two. Plaintiff relies entirely on the assertions of counsel and the Closing Checklist. No reasonable jury could conclude, on the basis of the Closing Checklist alone, that plaintiff received one copy rather than two. The three-day limitations period under 15 U.S.C. § 1635 (a) applies and commenced on January 22, 2004, the date plaintiff received the Notice of Right to Cancel. Plaintiff is not entitled to rescission because her letter demanding rescission on January 9, 2007 was untimely.

Gonzales v. CIT Group/Consumer Fin., Inc. (E.D.PA, October 30, 2008, Shapiro, J.).

And just like that, the Truth In Lending rescission claim and all the other pendant federal claims are dismissed, with the state law claims remanded back to state court.

The plaintiff's counsel apparently made a complicated argument relying upon words in the agreement itself that arguably reflected their position that the plaintiff had only received one copy.

But there was no need to go down that road: all they needed was an affidavit from the plaintiff saying that she had only received one copy. That's all. At that point, it would've been a fact issue for the jury and would have survived summary judgment.

Federal Rule of Civil Procedure 56(e) provides for exactly this situation:

(e) Affidavits; Further Testimony.

(1) In General.

A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits.

(2) Opposing Party's Obligation to Respond.

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Keep that in mind the next time you get a motion for summary judgment saying the evidence revealed in discovery failed to meet an essential element of your claim: odds are your client or another witness can fill that gap based on their own recollection.

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The Associated Press has picked up the dispute between Paul Rosen, who wants to paint a mural on a parking lot near Rittenhouse Square, and his neighbors, who apparently believe public art is beneath them. The dispute was covered in depth last month by Philadelphia Magazine (the same issue with a feature on Jim Beasley, Jr.).

The mural has been designed by Michael Webb, who also did the lovely mural facing our own parking lot, a part of which you can see here at night. (Unsurprisingly, Slade McLaughlin's lights are still on.)

Both articles lay the elitism thick on the opponents; I'd like to give them the benefit of the doubt, but they haven't made that easy, and haven't made clear why they're actually opposed. If you're not going to voice the specifics of your opposition to something as presumably unobjectionable as a privately-paid public arts project then people are going to assume the worst, an assumption reinforced by anonymous ad hominem attacks like this one:

Elitism aside, a few people thought that Paul Rosen’s allegorical tribute to Justice was actually a thinly disguised advertisement for his law firm. “I can’t imagine that [Paul] would not put his name on it,” says one person who was at the Ethical Society meeting. “That’s a form of advertising and opens the door to other things. The next thing you know, they’ll put up something showing a little boy run over by an automobile or a doctor removing the wrong leg or something like that, and the phone number of some law firm.”

Please. If there's some reference to the Spector, Gadon & Rosen Foundation down by the artist's signature, then so be it. The same is true for virtually every privately-funded public arts project in the country, and, if I recall correctly, most of the benches in Rittenhouse Square.

While we're at it, is that anonymous commentator in favor of negligently running over children or amputating healthy limbs? Is there something wrong with either of those parties recovering compensation for their devastating losses?

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Ronald V. Miller, Jr., at the Maryland Injury Lawyer Blog, on the ball as always:

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert on the psychology of how jurors process requests for damage awards that I think is of interest to accident and malpractice lawyers.

I found of particular interest his theory that consumers – and by implication jurors – have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we tend to use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower that $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. ...

This advice corresponds with the general principle of negotiation that you should start with the highest number that you can reasonably and fairly demand. Of course, when you define "reasonable" and "fair" in such situations, you do so in a way most beneficial to you and your client — the core point is to have a rational basis for your numbers, a basis others will at least consider and not reject out of hand.

There are very few situations in which $500,000 is the "rational" number, even in the context of pain and suffering, which obviously does not have a specific dollar amount. Even if the jury, at the end of the day, will likely compromise on some round number, their decision will be much easier to make if they can build a number from rational, reasonable and fair components.

Those components include, as Ronald Miller writes, per diem amounts. I am fond of including interest and attorneys fees and the like.

Of course, the Maryland injury lawyer is in a completely different situation from me, a Pennsylvania injury lawyer, as Pennsylvania does not allow lawyers to suggest exact numbers to the jury. They can, however, present evidence that includes exact numbers, such as expert analyses of lost wages and fringe benefits, and medical bills. Further, you can of course use whatever numbers you want into settlement demands; there's no reason to keep your persuasive tools on lockdown until trial.

Keep that in mind the next time you write $X,000,000 or $X00,000 as your demand.

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In theory, Pennsylvania recognizes a duty in every contract for both parties to act with the utmost good faith and to engage only in fair dealing with one another.

In practice, these claims rarely succeed, like a week ago in the United States District Court for the Eastern District of Pennsylvania:

Pennsylvania law recognizes an independent cause of action for breach of the duty of good faith and fair dealing only in "very limited circumstances," such as insureds' dealings with insurers and franchisees' dealings with franchisees. Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 91 (3d Cir. 2000) (citing Creeger Brick and Building Supply, Inc. v. Mid-State Bank and Trust Co., 560 A.2d 151, 153-53 (Pa. Super. Ct. 1989). In Northview Motors, the United States Court of Appeals for the Third Circuit predicted that Pennsylvania courts would limit the application of claims for breach of the covenant to situations where they were "essential" and would not recognize an independent cause of action for breach of the covenant where the parties had entered into a detailed contract setting forth their obligations and rights. Id.; see also McHale v. NuEnergy Group, 2002 WL 321797 at *8 (E.D. Pa. February 27, 2002) (finding that "Pennsylvania law would not recognize a claim for breach of [the] covenant of good faith and fair dealing as an independent cause of action" where the allegations underlying the breach of covenant claims are "essentially the same" as those underlying the plaintiff's claim for breach of contract).

The Court similarly finds that Pennsylvania would not recognize an independent claim for breach of the covenant of good faith and fair dealing in this case. As in Northview Motors, the parties here entered into a detailed contract setting forth their rights and obligations with respect to the purchase of the property at issue. The facts that Sentry Paint alleges give rise to its claim for breach of the implied duty of good faith and fair dealing are the same as those that form the basis for its breach of contract claims. Under these circumstances, Sentry Paint's breach of covenant claims are subsumed in its breach of contract claims and cannot be maintained as a separate cause of action. Fn 20:

Fn 20: In support of its separate cause of action for breach of the covenant of good faith and fair dealing, Sentry Paint cites to the Pennsylvania Supreme Court's decision in Birth Center v. St. Paul Co., 787 A.2d 376 (Pa. 2001) and the decision of the Lawrence County Court of Common Pleas in Harlan v. Erie Ins. Group, 2006 WL 1374502 (Lawrence Co. CCP February 16, 2006). Both Birth Center and Harlan involved contractual bad faith claims by an insured against an insurer, one of the "limited circumstances" in which Pennsylvania recognizes an independent cause of action for breach of the covenant of good faith and fair dealing. Neither case supports recognizing an independent cause of action here in an action involving an arms-length purchase of property.

Sentry Paint Techs. v. Topth (EDPa, October 31, 2008, McLaughlin, J.).

C'est la vie. Hard to know what their damages would be anyway in this case, if not damages arising out of a breach of the explicit terms of the contract. To me, outside of those quasi-fiduciary situations described above, the "good faith and fair dealing" seemed like a catch-all where it was hard to prove exactly what the breach was, except for a bad faith failure to perform.

But don't despair, business plaintiff trial lawyers — this case was at summary judgment, so you can even use it in support of alleging the claim in your complaint when they file a motion to dismiss or motion for judgment on the pleadings.

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Quite unfair:

Like a parent telling two children to go work things out for themselves, the justices declined to resolve the The Great High Court Showdown of 2008 — Olson v. Larisa.

The Court’s refusal to resolve the spat left Rhode Island, its governor and the town council of Charlestown to choose who — Supreme Court novice Joseph Larisa, or veteran Ted Olson — will appear before the justices on Monday to argue Carcieri v. Kempthorne, an Indian land case.

Their decision? Olson, according to a report on Scotus blog. Larisa, who’s never argued before the High Court, will be left to watch as Olson takes the reins on a case that Larisa has reportedly spent the better part of a decade working on

It may make sense before a Supreme Court, particularly the Supreme Court, given the limited scope of the short argument and how they generally care not one whit about the facts or details of the case, but instead focus on more general legal and policy questions. Olson knows the Court, the Court knows him, so it may make sense to bring in a big name on the eve of the argument.

But don't ever do that on a trial. Not ever. Trials are different. Trials are unpredictable. Trials can turn on "minor" details and quick-thinking during direct or cross examination.

Maybe you'll get lucky. Maybe the case really is so simple that it comes down to a lawyer's experience in a particular field or in connecting with juries.

That, however, is the exception, not the rule. Trial preparation requires not just work but time. It cannot simply be crammed into the space of a week, a few days, or the first couple nights at trial. It's not enough to read and re-read all the depositions and pleadings and motions: you need to think about them.

This point is so important it's worth mixing metaphors: the facts need to marinate in your head, and your ideas need to germinate and flower so that they can percolate at the right time during the trial.

That cannot be done in a week. It reminds me of advice I read from a preacher (to fellow preachers) many years ago: the Lord reveals far more in a month than He does in a day.

Combine that with Sun Tzu's Art of War: every battle is won or lost before it's ever fought.

And we have our motto: every trial is either won in the months, or lost in the days, before it's ever tried.

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Carolyn Elefant kicks off a discussion on "The Deterioration of Legal Writing," beginning with a Financial Week story, concluding:

While I believe that both factors -- the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is  the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.  At the end of the day, with so many resources available, legal analysis is suffering, and as a result, so too is the quality of legal writing, which relies on the quality of the underlying analysis for its impact and effectiveness. 

Evan Schaeffer chimes in with links to many of his great legal writing posts.

I had two "legal writing" classes in law school. Both were terrible; I encountered one teacher later who said she was glad to have moved back to consulting because it was "more funner" than teaching.

I'm not kidding.

Two points.

First, I challenge the notion that today's law students write any worse than their predecessors. It may be true, but I have seen no objective evidence of that. Complaints about writing ability are common for all employers, and complaints about the upcoming generation are as old as written history. Take this complaint:

On the matter of overwork they are particularly stern. They want to work hard, but not too hard; the good, equable life is paramount and they see no conflict between enjoying it and getting ahead. The usual top executive, they believe, works much too hard, and there are few subjects upon which they will discourse more emphatically than the folly of elders who have a single-minded devotion to work. Is it, they ask, really necessary any more? Or, for that matter, moral?

....Out of necessity, then, as well as natural desire, the wise young man is going to enjoy himself — plenty of time with the kids, some good hobbies, and later on he'll certainly go for more reading and music and stuff like that. He will, in sum, be the apotheosis of the well-rounded man: obtrusive in no particular, excessive in no zeal.

That's from 1956; Kevin Drum dug it up in response to an article just posted that was virtually identical.

Second, while great legal writing requires a career-long dedication to excellence, not-bad legal writing just requires keeping in mind a couple points:

1. There may be rules for the formatting of legal arguments, but there are no rules for the content — do not force the content of your writing into an artificial form.
    
2. Remember and use the twenty-odd years of writing education that preceded law school. Write sentences in which nouns perform specific actions upon direct objects. Use topic headings and thesis sentences and appropriate paragraph divisions. Present information in a logical form. Read what you wrote aloud; does it sound confusing? If so, then it's confusing to read, too.
    
3. The very worst examples of legal writing are the edits of cases in law school textbooks. Judges usually do not write opinions with frequent leaps in logic, sentence fragments, and the generous use of the ellipsis.
    
4. The second worst examples of legal writing are Supreme Court opinions, which are the product of a delicate compromise amongst multiple Justices and which are deliberately limited in scope so as not to exceed the actual holding.
    
5. The third worst examples of legal writing are law review articles, which must conform to multiple literary conventions that have nothing to do with ease-of-reading or persuasion.
    
6. The best examples of legal writing that are easily accessible are trial court and intermediate appellate court opinions. These opinion state facts and then apply them to law, with little interference (at least apparent on the face of the opinion) from politics or compromise or convention.

In short, writing not-bad requires reading a few short books on writing, like Strunk & White's Elements of Style and Joseph M. Williams' Style, then reviewing some basic court opinions, and then applying the same principles to your own work.

Finally, never be afraid to disregard your writing instructor's advice; odds are they're looking to move on to something "more funner" anyway.

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John Edwards' political career might be over, but he's still a punching-bag for the "tort reform" crowd.

He shouldn't be. Here's an example.

Stephen Bainbridge leaves his expertise and reveals himself at least a careless speaker, if not an outright fool. After Eric Johnson at PrawfsBlog discusses teaching a Torts class via John Edwards' Four Trials, Bainbridge criticizes Johnson for failing to note Edwards' "junk science," which Bainbridge 'proves' by block-quoting two spurious conservative articles, one from the Wall Street Journal and the other from the National Review, both decrying Edwards' prosecution of birth trauma cases alleging celebral palsy due to medical malpractice.

I've represented plaintiffs in birth injury cases alleging obstetrical malpractice caused celebral palsy. They're not junk science; they're common sense and good science, accepted and supported by every major medical organization.

I don't care that "delivery problems [are] not to blame for cerebral palsy in the 'vast majority' of cases." I don't sue obstetricians just because a child has CP. I sue obstetricians because the medical record and the testimony reveal malpractice resulting in extended hypoxia and acidosis of such a magnitude that it caused moderate or severe neonatal encephalopathy.

And why do I look for that? Because the American College of Obstetricians and Gynecologists (ACOG) Task Force on Neonatal Encephalopathy and Cerebral Palsy says that can cause cerebral palsy. In fact, this organization comprised solely of physicians, funded and supported by hospitals and insurance companies, even established criteria for such birth injury:

The criteria to define an acute intrapartum event sufficient to cause cerebral palsy, as modified by this Task Force from the template provided by the International Cerebral Palsy Task Force, are listed as follows:*

Essential criteria (must meet all four)

1. Evidence of a metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH <7 and base deficit =12 mmol/L)
2. Early onset of severe or moderate neonatal encephalopathy in infants born at 34 or more weeks of gestation
3. Cerebral palsy of the spastic quadriplegic or dyskinetic type†
4. Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders 

The fourth is often the most important in these cases. It doesn't matter how many hours a fetus spent in distress before being delivered, I can guarantee you the defense lawyer and insurance adjuster will find an smooth-talking local expert with a strong CV to say, in their fair and unbiased opinion, to a reasonable degree of medical certainty, that the baby's injuries were due to a stroke some undetermined number of days in advance, and thus the child's problems are definitely not the fault of the doctor or hospital.

It won't matter that, until smooth-talking Dr. Expert, not a single health care provider noticed or considered this "stroke." It won't matter that the opinion is based on pure speculation, and that it contradicts the placental pathology done at the time and the admitting diagnosis / discharge summary of the neonatologist. It'll come into the trial and will require you fight hard to rebut it, to prove it was hypoxic ischemic encephalopathy.

Sure, I think that's junk, but I'm a lawyer who gets paid to prove otherwise. So, again, ACOG:

Criteria that collectively suggest an intrapartum timing (within close proximity to labor and delivery, eg, 0-48 hours) but are nonspecific to asphyxial insults

1. A sentinel (signal) hypoxic event occurring immediately before or during labor
2. A sudden and sustained fetal bradycardia or the absence of fetal heart rate variability in the presence of persistent, late, or variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal
3. Apgar scores of 0-3 beyond 5 minutes
4. Onset of multisystem involvement within 72 hours of birth
5. Early imaging study showing evidence of acute nonfocal cerebral abnormality

There you go, my "junk science." That's what I'm looking for and that's often how I prove the causal element of my OB/CP cases.

That is, with ACOG guidelines. Are they junk, too? Is it all junk except for what some political hack writes to criticize John Edwards?

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If you've ever done business or commercial litigation, you've done tortious interference with contractual / business relations. It's alleged virtually every time a party switches suppliers or customers, and virtually every time the lawsuit involves more than two parties.

But did you know you can claim non-pecuniary damages (so long as you have some economic damages) and get an injunction  before the damage occurs?

From the Eastern District of Pennsylvania:

The damages element of a claim for intentional interference with contractual relations (the fourth element) requires a plaintiff to prove that the alleged interference has caused an actual pecuniary loss, the benefits of which flowed from the contract itself. Although an actual pecuniary loss must be established, non-pecuniary harms are also recoverable under this tort. Shiner v. Moriarty, 706 A.2d 1228, 1239 (Pa.Super. 1998); Perry v. H&R Block Eastern Enterprises, Inc., 2007 U.S. Dist. LEXIS 22406, 2007 WL 954129, at *10 (E.D.Pa. March 27, 2007)(McLaughlin, J.).

Moreover, the actual pecuniary loss requirement does not defeat actions for tortious interference with contractual relations, such as this one, which seek to enjoin the interfering conduct before it is successful. In Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 436 n.21, 393 A.2d 1175, 1185 n.21 (1978), the Supreme Court of Pennsylvania specifically held that notwithstanding the actual pecuniary loss requirement, "[i]t  is well settled that equity will act to prevent unjustified interference with contractual relations." See also Restatement (Second) of Torts § 766, comment u.

Similarly, in affirming the issuance of a preliminary injunction in a case based upon tortious interference with contractual relations and trespass claims, the Third Circuit recognized that injunctive relief may be appropriate before an actual pecuniary loss is sustained. In this regard, the Third Circuit held that a preliminary injunction may issue where the claimant has demonstrated that there is a "presently existing actual threat of injury". Ride the Ducks of Philadelphia, LLC v. Duck Boat Tours, Inc., 138 Fed.Appx. 431, 434 (3d Cir. 2005) (citing Continental Group, Inc. v. Amoco Chemicals Corporation, 614 F.2d 351, 359 (3d Cir. 1980)).

Hospitality Assocs. of Lancaster, L.P. v. Lancaster Land Development, 2008 U.S. Dist. LEXIS 76772 (September 20, 3008, Gardner, J.).

Shiner v. Moriarty, cited above, quotes Pawlowski v. Smorto, 403 Pa. Super. 71, 588 A.2d 36 (Pa.Super. 1991), for the damage element of the tort involving "the loss of the benefits of the contract or prospective relation or consequential, emotional or reputational losses resulting from the defendant's conduct."

Did you plead all that last time? If not, perhaps you should consider amending...

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EDD Update points us to this article from Wes Billingsley in the Texas Lawyer:

... all too often, lawyers raise spoliation claims not for legitimate reasons but instead to turn cases lacking substantive merit into opportunities to procure a quick settlement.

...

Openly challenge spoliation allegations through candid discussions with opposing counsel. Often these discussions may become technical in nature and require greater client involvement, but they should reveal quickly whether there is merit to the other side's claims, sometimes even before an opponent files a sanctions motion.

When legitimate concerns about a client's ESI [electronically stored information] do exist, explore other sources from which to obtain the electronic documents. Do not become fixated -- or let the other side fixate -- on the fact that documents from a specific source may no longer be available. The amended rules require that relevant documents be produced once; if the client produces documents from a server or backup tapes, that should be sufficient to refute a spoliation claim that alleges the documents were not also produced from a particular source, such as an individual's personal computer.

If only it were that simple... Unfortunately, the "spurious" spoliation allegation is frequently the only way I can get the other side to actually produce all of the documents I requested.

Take, for example, a typical tractor-trailer trucking accident. The Federal Motor Carrier Safety Regulations (49 CFR Part 325 et seq., which have been adopted wholesale by every state of which I'm aware) impose very specific requirements upon motor carriers for the retention of a wide variety of "supporting documents," including bills of lading, waybills, fuel receipts, you name it.

Part 379.7 ("Preservation of Records") should be ideal for plaintiff's lawyers, as it requires:

The records shall be indexed and retained in such a manner as will render them readily accessible. The company shall have facilities available to locate, identify and produce legible paper copies of the records.

That is, it's supposed to be trivially easy for trucking companies to produce these records. If the Department of Transportation asked, they'd have them on the spot.

But when I ask for them, my request is "too vague" and "overly broad" and it would be "unduly burdensome" to produce them. "Candid discussions" get nowhere; motions get somewhere.

Of course, once they are "produced," it soon becomes apparent that I have 90% of the documents I don't care about and 5% of the ones I do.

What to do? Well, I could file yet another discovery motion to clog up the courts after my "candid discussion" fails, or I could inform defense counsel that their failure to retain these documents represents spoliation, and that my experts will testify such missing documents could have revealed whatever it is I'm trying to prove.

Is such an allegation "spurious?" I don't think so, I genuinely believe that the failure to preserve records like that creates a factual issue for the jury to consider. Why not sit down and have a candid discussion with defense counsel about that? It usually gets better results than hearing from defense counsel, over and over again, that certain documents don't exist when you know they should.

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Over at PhilaLawyer, an anonymous (and largely humor-focused) part of the Rudius blog network, there are four ideas for "Shyster-Proofing the Courts:"

1. Immediate Mandatory Mediation
2. Allow Expert Witnesses to be Deposed
3. Give Frivolous Litigation Claims Teeth and Allow Expert Witnesses to Be Sued in Such Claims
4. Eliminate Referral Fees

First, let's keep something important in mind: the bulk of civil cases involve automobile accidents. So in some sense we're really missing the boat unless we're talking about that specifically. That said, I doubt any of these would make a difference.

1. Immediate Mandatory Mediation

Because I work on a contingent fee, I would like nothing better than to settle cases as quickly as possible.. Settlement puts money in my pocket, does not require my own money put out on the street for costs and fees, and puts my client back on their feet, a particular concern in personal injury and medical malpractice cases. So don't think I am ever the one driving the litigation.

Problem is, even a hypothetically perfect insurance company that promptly and fairly evaluates every claim, sets an appropriate reserve, and begins negotiation has multiple incentives not to settle early. The insurance company makes a return on every single penny in their reserves, a return that evaporates the moment they tender a check to me. The insurance company also typically starts blind on damages; they know a lot about their insured's liability, but very little about my client's medical expenses, lost wages, and the impact the injury has had on their life, and for obvious reasons the insurance company is not going to take my word for any of them. Finally, the insurance does not know how highly I really value the case. The only way they believe they can estimate my bottomline is by pushing back against me and seeing how I respond. Even at a firm with a strong reputation for taking cases to trial and for rejecting weaker (even though meritorious) cases, there is still a belief among insurers and defense counsel that some of the cases are "nuisance value" cases taken to maintain cash flow, with little expectation of a substantial settlement or verdict.

In the real world, the above analysis does not even happen at the insurance company until the case is ready for trial. The insurance adjuster, who, as a cog in a bureacracy, has the primary goal of demonstrating their usefulness to the bureaucracy by creating an extensive paper trail, frequently does not even bother to set a reserve for the case until trial schedules have been finalized. Similarly, the defense attorney, who gets paid by the 10th of the hour they spend defending the case, has little incentive to encourage a swift resolution of the case, thereby extinguishing a source of income and appearing feckless in the face of controversy.

Thus, by and large early mandatory mediation conferences will function as a subsidy for defense lawyers — by giving them something else to bill for — and a tax on plaintiff's lawyers — by taking them away from their other contingent fee cases. At the conference, the defense attorney will have authority only for a nuisance value while the plaintiff's attorney (who will be a junior associate, if the firm has them) will have authority only for the highest number the plaintiff's attorney can reasonably demand. If there is some external force which could drive early settlement, that force will do so regardless of court intervention.

2. Allow Expert Witnesses to be Deposed

That's already the case in the federal system. While it probably does reduce the need for trial because it puts almost everything on the table, it won't do anything to cut back on litigation. The point about having experts who write bogus opinions expecting a case will never go to trial is well taken, but that's already factored into our current system — if one of the sides thinks the expert will pull out the event at trial, they'll just push the case straight to trial, extracting a favorable settlement while teaching the other side a lesson. Adding a deposition, which would naturally have to occur after discovery (as it does in the federal system), won't really change that dynamic, it just slightly advances the time when the expert pulls out. There might be some savings to that, since it obviates the need for full trial preparation, but those savings would be minimal.

I don't think expert witness depositions are a bad idea, I just don't think they will result in any significant savings. Moreover, in cases worth less than, say, $100,000, expert witness depositions could have the perverse effect of making settlement less likely, because they hike up the costs of bringing the case to trial, thereby requiring the plaintiff and their attorney to raise the demand accordingly to protect the amount they get in the end, which in turn makes it less likely the insurer will meet the demand.

3. Give Frivolous Litigation Claims Teeth and Allow Expert Witnesses to Be Sued in Such Claims

Frivolous lawsuits are already actionable in most states, and are frequently acted upon right here in Philadelphia County. In Pennsylvania, there is specific statutory authorization for them under the so-called Dragonetti Act, named after the first attorney to get really walloped under it. The elements of such a wrongful use of civil proceedings suit seem reasonable to me:

§ 8351.  Wrongful use of civil proceedings

(a) ELEMENTS OF ACTION.-- A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
 
   (1) He acts in a grossly negligent manner or without probable cause and
   primarily for a purpose other than that of securing the proper
   discovery, joinder of parties or adjudication of the claim in which the
   proceedings are based; and
 
   (2) The proceedings have terminated in favor of the person against whom
   they are brought.

...

§ 8352.  Existence of probable cause

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
 
   (1) Reasonably believes that under those facts the claim may be valid
   under the existing or developing law;
 
   (2) Believes to this effect in reliance upon the advice of counsel,
   sought in good faith and given after full disclosure of all relevant
   facts within his knowledge and information; or
 
   (3) Believes as an attorney of record, in good faith that his
   procurement, initiation or continuation of a civil cause is not
   intended to merely harass or maliciously injure the opposite party.

42 Pa.C.S. § 8351 et seq.
 

If there is a way to improve these elements, I would love to hear it. I personally can't think of any way of strengthening it without making it, at best, confusing and, at worst, a violation of the rights of due process and access to the courts.

As for moving against experts, there is always perjury. Beyond that, it's hard to imagine a worse idea than intimidating witnesses not to say what they really think. The point about this honest experts is, again, well taken, and I have tangled with my fair share of them, but such annoyances must be balanced against minor concerns like truth, justice and fairness. The best you can do now to retaliate against a lying expert is to report them to whatever professional organization of which they are a member, which hopefully have a deterrent effect against future offenders. I am loath to really encourage that idea, though, because by and large professional associations have a serious pro-defense bias, the natural result of a (perhaps understandable) desire to protect and shield their members from liability.

4. Eliminate Referral Fees

I have no idea how that would help anything. Plaintiffs lawyers bill on a contingent fee; if the case is meritless, they're a waste of time and money to pursue. Indeed, referral fees in my opinion actually reduce the number of cases filed, because they cut into the fee earned by the attorney actually pursuing the matter, thus requiring the case be stronger and have larger damages than if the case been brought in directly. Moreover, if there really is a problem of "recidivist professional plaintiffs," what good would it do to eliminate referral fees? They'll simply go to the same attorneys over and over or they'll find attorneys on their own — they're among the few people who really can find the right attorney for them on their own.

More importantly, referral fees serve a critical purpose in the civil justice system, introducing economic efficiency to an ordinarily inefficient process: the selection of a personal injury attorney by a nonlawyer. Corporate lawyers and clients don't need anything like a referral system because, as part of their paying jobs, they interact with all kinds of attorneys and generally have connections that can set them up with the right person for the job.

Your typical Wal-Mart or Wawa cashier hasn't the faintest clue about what to do when they get paralyzed by a drunk truck driver or when their spouse's brain gets blown out by an overdose of Heparin. Most lawyers don't even know to whom they'd turn in the event of a catastrophic injury. The referral system creates an incentive for the initial attorneys not just to half-assedly send a case away, but to diligently choose an appropriate attorney who can get the best result for the client.

Finally, and to me this is the most important function of the referral system, referral fees — specifically large referral fees — encourage attorneys who are not really qualified to handle large matters to refer those matters out to attorneys who are qualified. I cannot tell you the number of times I have been referred a case either because "it's just too big for me" or because "after I filed suit, the defense attorneys went nuclear on me." That is a good thing; attorneys should have no hesitation to radio SOS when the waters get rough. Eliminating referral fees gives them an incentive to hold on to these cases and "do their best," which is frequently not in the client's best interest.

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A Pennsylvania insurance coverage / bad faith question:

I bought my home 5 years ago from estate.  Now, I'm selling my home, the buyer's title insurance company found 3 problems, including a tax lein of 55.00 plus penalties.  My title insurance company offered ademity letter to new title insurance company.  They don't want that, they want problems resolved.  My title insurance company says too bad.  Not worth the money to find my file.  They don't know whether claims are valid or not.  Will not resolve them or see if they need to be resolved.  Won't even look at file!  This seems wrong.  What should I do?  We had a closing date of Sept.29 that will probably have to be moved.  May lose sale.  Do I need a lawyer?

And my response:

You should speak with a plaintiff's attorney experienced in bringing bad faith claims against insurance company.

When an insurance company breaches the terms of the insurance policy the insured can bring a claim for breach of contract and recover the damages resulting from the insurance company's breach. A number of title insurance policies include a requirement that the title insurance company actively work to resolve title issues, and every one I've seen requires the title insurance company at least pay for all damages resulting from such title issues, up to the policy limits. It sure seems like your title insurance company is refusing to do that, which is a breach.

Moreover, in Pennsylvania, every insurance company has a legal duty to promptly and reasonably evaluate and adjust claims in good faith. If they don't, there is a specific legal claim available against them which can include the award of attorneys fees, interest and punitive damages. It does not seem like your claim has been evaluated fairly.
 

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Steve Rubel at Micropersuasion complains about the Official Google Docs Blog encouraging students to automatically cut-and-paste images found online, without attribution:

Fans of Google Image Search will be happy to see that you can also find and insert images into your documents. Again, you just highlight a word or phrase. Then, use Tools>Search... using Image Search. Once you find the right image, you can drag-and-drop that image directly into your document.

Steve has a simple, elegant solution:

There's a simple solution here. Add a Creative Commons filter for re-usable content to any image search activated from Google Docs and teach students how to source them.

That's not just a good idea -- as Lawrence Lessig has been shouting from the roof tops, under the Grokster decision,

one who distributes a device with the object of promoting its use to infringe copyright … is liable for the resulting acts of infringement by third parties.

Photographs can and do sue over infringement of their photos, like PhillySkyLine did recently (see here for more; frankly, it looks like a slam dunk for them).

Probably not what Google intended.

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Congratulations, Paul:

The estate of legendary sports announcer John Facenda has scored another major victory in its court battle with NFL Films that centers on whether Facenda's distinctive voice -- known in football circles as the "Voice of God" -- was improperly used in a promotional film for a John Madden video game.

In its 60-page opinion in Facenda v. NFL Films Inc., a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled Tuesday that NFL Films violated Pennsylvania's "right of publicity" statute.

Now the only issue left to be decided on that claim is how much Facenda's estate should be awarded in damages.

The panel rejected NFL Films' argument that the "standard release" contract Facenda signed was a "complete defense," noting that while the release gave the NFL the right to use Facenda's voice in future film projects, it also explicitly prohibited any use that would "constitute an endorsement" of any product.

"Facenda consented to participation in films documenting NFL games, not an advertisement for a football video game," 3rd Circuit Judge Thomas L. Ambro wrote in an opinion joined by Judges Michael A. Chagares and Robert E. Cowen.

...

The NFL's lawyer, Bruce P. Keller of Debevoise & Plimpton in New York, argued that the 22-minute film, titled "The Making of Madden," was a documentary and was therefore a work of artistic expression entitled to First Amendment protection.

But Paul A. Lauricella of The Beasley Firm, who represented John Facenda Jr., argued that the film was nothing more than an "infomercial" for the video game "Madden NFL 06," and was therefore purely commercial speech.

In the lower court, Hart sided with Lauricella and concluded that the film was not a documentary because it "lacks the journalistic independence typical of the maker of a documentary" and because NFL Films had a "direct financial interest" in the success of the video game.

Ambro agreed with Hart, saying "like an infomercial, the program focuses on one product, explaining both how it works and the source of its innovations, all in a positive tone."

As a result, Ambro concluded that the NFL's First Amendment defense failed.

Although "commercial speech does receive some First Amendment protection," Ambro said, the Lanham Act "customarily avoids violating the First Amendment, in part by enforcing a trademark only when consumers are likely to be misled or confused by the alleged infringer's use," he wrote.

Opinion's worth the read if you're in the copyright, right of publicity, or misleading advertising fields. The NFL ran the full gambit of defenses, from preemption to "actual confusion," and lost on all of them.*

* Technically, the Third Circuit moved one issue back from summary judgment to the jury. Here in plaintiff's land, when something goes to the jury, we call it a win.

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From the Middle District of Pennsylvania:

In Pennsylvania, an individual who sustains injury in a motor vehicle collision that is aggravated by subsequent medical negligence may recover damages for both injuries either from the driver exclusively or from the driver and the negligent medical practitioner in tandem. See RESTATEMENT (SECOND) TORTS § 457 (s1965) [hereinafter "RESTATEMENT"]; Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 434 A.2d 1253, 1258 (Pa. Super. Ct. 1981) (stating that "the original tortfeasor[ in an automobile collision] is . . . fully responsible . . . for the negligent manner in which a physician or surgeon treats the case"). The plaintiff may recover all damages solely from the negligent driver because subsequent faulty treatment is deemed to be a foreseeable consequence of the automobile accidence. See RESTATEMENT § 457 cmt. a ("[D]amages assessable against [a negligent driver] include not only the injury originally caused by the [driver's] negligence but also the harm resulting from the manner in which the medical, surgical, or hospital services are rendered"); Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516, 517 (Pa. 1988).

However, if the plaintiff sues both the driver and the physician, liability should be allocated according to each tortfeasor's separate negligence. 1 See Frazier v. Harley Davidson Motor Co., 109 F.R.D. 293, 295-96 (W.D. Pa. 1985) (stating that negligent motorists and subsequently negligent physicians commit separately identifiable acts of negligent); Smith v. Pulcinella, 440 Pa. Super. 525, 656 A.2d 494, 497 (Pa. Super Ct. 1995); Harka v. Nabati, 337 Pa. Super. 617, 487 A.2d 432, 434 (Pa. Super Ct. 1985) (quoting Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381, 383 (Pa. Super. Ct. 1982)) ("[T]o the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly."). The court determines as a matter of law whether injuries are capable of apportionment; however, the jury determines the value of the claim against each defendant. Voyles, 441 A.2d at 383.

Trout v. Milton S. Hershey Med. Ctr., 2008 U.S. Dist. LEXIS 65553 (emphasis added).

If the medical malpractice causes a catastrophic injury, there are very few situations in which you would want to proceed only against the car driver, not least because they likely have far less available insurance than the medical provider. Indeed, in this case the plaintiff's leg became necrotic and had to be amputated allegedly due to medical malpractice, an injury that, when combined with the accident itself, likely exceeds the insurance coverage of most drivers.

Then again, if neither the auto accident nor the medical malpractice was catastrophic, and the damages are within the coverage limits, the action can be substantially simplified by proceeding only against the car driver. You will still need expert medical testimony, but you might not get nearly the same fight as you would going against the medical provider directly. You might also have more settlement leverage against the car driver's insurance company because they run the risk of eating all of the damages at trial.

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One of my favorite cases, Huber v. Taylor, filed 2002, loaded with allegations against the plaintiffs former attorneys and all kinds of fun remedies like disgorgement, just finished its second round on appeal, back down to the District Court for the third time.

The prior opinion, Huber v. Taylor, 469 F.3d 67 (3d Cir. 2006), was one of the more important recent opinions for "lawyer's lawyers" in the Third Circuit. The case is also a great example of how the paperwork these cases, e.g. attorney malpractice or disputes between lawyers, can quickly mushroom, and why they get so expensive.

Most importantly, it shows just how far the Third Circuit (and I'd say most appellate courts, federal or state) is willing to go to police the professional by enabling clients to recover from attorneys.

Let's start with the facts, as recounted by the second appeal:

Plaintiffs, all of whom have asbestosis, were previously represented by Defendants in asbestos personal injury actions in Mississippi state court. Asserting multiple claims on behalf of themselves and a putative class of asbestosis victims, Plaintiffs alleged that Defendants failed to disclose both the material terms of settlement offers as well as the fee-sharing arrangements among co-counsel during the course of the Mississippi litigation. They also  alleged, among other things, that Defendants (1) distributed less of the settlement funds--totaling hundreds of millions of dollars--to them than to other similarly situated clients, all to the benefit of Defendants; and (2) charged expenses that were inflated, inappropriate, and, in some instances, fictitious. Plaintiffs asked for compensatory damages, disgorgement of attorneys' fees, as well as punitive damages.

In the first appeal:

On appeal, this Court vacated the District Court's denial of class certification as well as its grant of summary judgment to Defendants on Plaintiffs' breach of fiduciary duty claims. Huber, 469 F.3d at 83. The majority determined that the District Court failed to apply the appropriate law, namely Texas law, which does not require a showing of actual injury in order to maintain a claim for breach of fiduciary duty when the remedy sought is disgorgement of attorneys' fees. The Court accordingly remanded the case for adjudication of Plaintiffs' breach of fiduciary duty claims in light of Texas law.

The first appeal took a stab at guessing Pennsylvania law on proving damages where only disgorgement is requested, too:

At first blush, Pennsylvania, Indiana, and Ohio law seem to indicate that claims for breach of fiduciary duty require actual harm. Mullen v. Cogdell, 643 N.E.2d 390, 401 (Ind. App. 1994); McConnell v. Hunt Sports Enters., 132 Ohio App. 3d 657, 725 N.E.2d 1193, 1215 (Ohio App. 1999); Pa. S.S.J. I. 13 § 4.15 (1991). Whether these states would require a showing of actual harm in a situation in which only disgorgement is requested is, however, an open question. The issue has never been resolved by these states' courts. Arguably, they might adopt the well-considered position of every jurisdiction that has considered the issue, which is to require harm only for damages, not for the equitable remedy of disgorgement.

The Third Circuit also blasted the defendants for trying to duck their professional responsibility:

It is well-settled law, regardless of jurisdiction, that attorneys owe their clients a fiduciary duty. Akron Bar Ass'n v. Williams, 104 Ohio St. 3d 317, 320, 2004 Ohio 6588, 819 N.E.2d 677 (Ohio 2004) ("The attorney stands in a fiduciary relationship with the client and should exercise professional judgment solely for the benefit of the client and free of compromising influences and loyalties."); In re Tsoutsouris, 748 N.E.2d 856, 859 (Ind. 2001); Office of Disciplinary Counsel v. Monsour, 549 Pa. 482, 486, 701 A.2d 556 (Pa. 1997) ("This public trust that an attorney owes his client is in the nature of a fiduciary relationship involving the highest standards of professional conduct."); Arce v. Burrow, 958 S.W.2d 239, 246 (Tex. Ct. App. 1997), rev'd on other grounds, 997 S.W.2d 229, 42 Tex. Sup. Ct. J. 932 (Tex. 1997). The duty includes undivided loyalty, candor, and provision of material information. Willis v. Maverick, 760 S.W.2d 642, 645, 31 Tex. Sup. Ct. J. 569 (Tex. 1998) (provision of information material to the representation).

Defendants argue that "the fiduciary duties of disclosure at issue in this case were properly assumed and performed by each plaintiff's individually retained local counsel in Pennsylvania, Ohio, or Indiana." The performance of the duty is a question of fact for the jury, although some acts, as a matter of law, cannot constitute performance. If Local Counsel did not perform their fiduciary duty, it does not matter that they assumed the duty because the fiduciary duty of co-counsel is a joint obligation. Even if the duty of disclosure is  itself delegable, the duty of loyalty is inherently not, and in this case disclosure was necessary to fulfill the duty of loyalty. Thus, Local Counsel's alleged failure to fulfill the fiduciary duty of disclosure could hardly excuse the Defendants.

In the second round before the District Court:

On remand, Plaintiffs sought leave to file a proposed third amended complaint, asserting breach of fiduciary duty claims under Texas law and again seeking certification of a class. The District Court denied Plaintiffs' motion for leave to file their third amended complaint, then dismissed Plaintiffs' six-year-old claims for want of jurisdiction. Specifically, the District Court was persuaded that no single plaintiff could satisfy the statutory minimum amount in controversy. The District Court also decided--sua sponte--that Plaintiffs' local counsel ("Local Counsel") were necessary and indispensable parties who had not been named in Plaintiffs' complaint. Plaintiffs now appeal the District Court's order of dismissa