Published By: Maxwell S. Kennerly, Esquire

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For a certain generation or two, there is a single, definitive source on the legislative process, “I’m Just A Bill” from Schoolhouse Rock!:

If you’re under forty years old, “I’m Just A Bill” probably taught you everything you know about how Congress works. I’m sure you remember how it ends:

Boy: By that time it’s very unlikely that you’ll become a law. It’s not easy to become a law, is it?

Bill: No!

But how I hope and I pray that I will,
But today I am still just a bill.

Congressman: He signed you, Bill! Now you’re a law!

Bill: Oh yes!!!

But that’s not the end of the story. Once a bill becomes a law, that law has to be enforced. In “I’m Just A Bill,” the law in question requires that school buses stop at all railroad crossings — but somebody has to make sure that actually happens. There has to be some sort of consequences for school bus drivers and school systems that don’t follow the law. …
Continue Reading How A Bill Comes A Law And How The Law Becomes Reality

Back in the summer time, the House Judiciary Committee approved the Lawsuit Abuse Reduction Act (H.R. 966; identical Senate version S. 533 still in committee), the claimed purpose of which is “To amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability, and for other purposes.”

Attorney accountability? Sign me up! I’ve been railing against improper conduct by lawyers for years. See, for example, my posts on Grider v. Keystone Health, how lawyers deceive themselves into lying for clients, and a bogus sanctions threat I received. (For those of you who wrongly believe only plaintiff’s lawyers engage in misconduct, Grider involved misconduct by defense lawyers for a health insurance company.)

But the Lawsuit Abuse Reduction Act, if it becomes law, won’t increase attorney accountability. Quite the opposite, in fact. I assume those “other purposes” include “padding the profits of large corporate law firms,” because the Lawsuit Abuse Reduction Act is one of those exceptional bills that isn’t one-sided, but is just plain bad for everyone involved — consumers, employees, judges, and even insurance companies and corporate defendants — except for a single group of influential players, in this case the lawyers who represent big corporations in litigation.

The Lawsuit Abuse Reduction Act (“LARA”), it should be noted, has little to do with “lawsuit abuse,” to the extent that term even has a meaning.  Instead, LARA proposes a limited change to Rule 11 of the Federal Rules of Civil Procedure, the rule that governs sanctions for “representations to the court” in a “pleading, written motion, or other paper.” Rule 11 doesn’t apply to the vast majority of what people call “lawsuit abuse.” Rule 11 doesn’t apply to:

  • bogus threats to sue somebody,
  • unethical or vexatious conduct during discovery,
  • the destruction or concealment of evidence, or
  • use of improper arguments or falsified evidence at trial.

Instead, Rule 11 applies solely to what lawyers or unrepresented parties write to the court, and it requires the court find a conscious intent by the lawyer to do something wrong (contrary to Walter Olson’s reference to LARA punishing “negligent” conduct).  Keep that in mind: under both the current Rule 11 and under LARA, we’re talking about the very narrow situation of a lawyer or unrepresented party knowingly filing a paper with the court that includes false statements or which has no reasonable legal basis.

The current Rule 11 has a two-step process for sanctions. First, there’s a ‘safe harbor’ of 21 days, allowing attorneys to withdraw or revise any questionable “pleadings, written motions, or other papers” and thereby avoid sanctions. Second, if a court finds that a lawyer or unrepresented party “presented” to the court a writing for an improper purpose or which included a frivolous or factually unsupportable claim, “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation,” and those sanctions “may to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.”

There’s a lot of “may” in Rule 11, and for good reason: federal judges want discretion. As I wrote just last week, while discussing an example of lawyers needlessly filing sanctions motions against one another, in 2005, when similar changes to sanctions rules were being discussed, the Federal Judicial Center surveyed federal judges on a couple Rule 11 issues:

85% strongly or moderately support Rule 11’s safe harbor provision;

91% oppose the proposed requirement that sanctions be imposed for every Rule 11 violation;

84% disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation;

Those three proposals that the overwhelming majority of judges surveyed didn’t like — eliminating the safe harbor, making an award of sanctions mandatory for all Rule 11 violations, and making an award of attorneys’ fees mandatory — are the exact same proposals in the Lawsuit Abuse Reduction Act.

Let’s be honest: nobody thinks federal judges can’t handle their own courtrooms. They don’t need Congress telling them when and how to sanction a wayward lawyer for filing something with the judge that was misleading or false. The judges get it. They do this judging thing all day long, unlike the Members of Congress, not one of whom has ever been a federal judge for even a day.

So why the push for these changes?  Simple: because the threat of sanctions intimidates pro se parties and gives big corporate law firms another excuse to overbill their clients. …
Continue Reading The Lawsuit Abuse Reduction Act: Welfare For Overbilling Lawyers

A couple days ago the New York Times inexplicably had a front-page story on an issue that is news to no one: law schools don’t teach much about the practical side of lawyering.

Yeah, no kidding.  All the usual folks have chimed in (see, e.g., Greenfield, Concurring Opinions, Above The Law, etc.; probably my favorite was Balkinzation tying it larger economic forces), with Elie Mystal having the most depressing take of all:

At the end of the day, this all comes down to the lack of responsibility and critical thinking on the part of individual prospective law students. Law students are not practically trained because they don’t go to law school to be practicing attorneys. They go to law school because they love to “argue,” or “defend rights,” or some nonsense that has little to do with day-to-day lawyering. When they do go, they think little of the long-term financial future they are mortgaging on a law degree.

I sighed just reading that, and had to refresh myself with my old post about The Glamour and Glory of Being A Lawyer.

Before I write another word about the realities of law school and lawyering, let me first discuss something near and dear to my heart: hating the work of Andy Warhol.  He’s “the greatest artist of the 20th century” according to the head of “First Open Sale” at Christie’s because his “art” accounts for one-sixth of all contemporary art sales:

Warhol is now the god of contemporary art. He is indeed, it is said, the “American Picasso” or, if you prefer, the art market’s one-man Dow Jones. In 2010 his work sold for a total of $313m and accounted for 17% of all contemporary auction sales. This was a 229% increase on the previous year—nothing bounced out of recession quite like a Warhol. But perhaps the most significant figure is the rise in his average auction prices between 1985 and the end of 2010: 3,400%. The contemporary-art market as a whole rose by about half that, the Dow by about a fifth. “Warhol is the backbone of any auction of post-war contemporary art,” says Christopher Gaillard, president of the art consultants Gurr Johns. “He is the great moneymaker.”

Profitable, but I can’t help thinking his “art” is pointless.  That linked article confirmed my biases by noting Warhol actually had to pay the princely sum of $50 to gallery owner Muriel Latow to figure out his own style of “art”:

In return for a $50 cheque, she told him “to think of the most common, everyday, instantly recognisable thing he could”. He thought of his doting mother, Julia Warhola. Warhol had been, according to the philosopher and critic Gary Indiana, her “tantrum-prone, acne-riddled, albino lion cub”, a difficult and sick child to whom she gave maximum attention. He was spoilt—the family’s “moody, tyrannical centre-piece” who “shaped weaknesses into weapons for rejecting anyone he didn’t like and avoiding anything he didn’t want to do”. Julia lived in the basement of the Manhattan town house he had bought with his money from his advertising commissions. She used to give him soup for lunch—Campbell’s soup.

Now that you know where the Campbell’s soup can came from, and how Warhol didn’t even dream up that, let me get to the point of mentioning him. I consider Warhol to have been a shameless pirate of other’s copyrighted works — photographers Charles Moore, Fred Ward, and Patricia Caulfield all filed lawsuits against him for using their carefully composed photographs in dashed-off monochromatic silk screens — but as far as I can tell not one court ever held him liable for copyright infringement, in part because he settled the cases before the question could be answered.

So, did Warhol’s work infringe upon those other artists work? Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)(“the sine qua non of copyright is originality”). Obviously the art world obviously disagrees with me about his originality, but would a judge or jury? Assuming the jury did find infringement in, say, his Green Car Crash (Green Burning Car I) — which was nothing but a couple overlaid copies, all drenched in the same ugly green, of photographer John Whitehead’s haunting image of a horrific crash following a police chase — then how much of its whopping $71 million auction price was due to Whitehead’s image and how much was due to Warhol’s attempt to “always leave them wanting less”? (Mission accomplished, Andy.)

I don’t know the answer. No lawyer “knows” the answer. Consider the amicus brief filed by the Andy Warhol Foundation in the lawsuit brought by photographer Patrick Cariou against Warhol-esque pastiche artist Richard Prince. This is complicated stuff. It requires technical mastery of the principles of copyright law and creative, careful advocacy applying that law to artistic contributions so subtle that folks like me refuse to admit they exist at all. There is no way law school will ever prepare anyone to advise an artist or a gallery or the owner of artwork on the line between originality and infringement. Lawyers have to develop that judgment over time. Law is a profession, not a technique.

So when I read David Segal open his article in the New York Times with an anecdote about a first-year lawyer not knowing how to file a certificate of merger, I roll my eyes. …
Continue Reading Andy Warhol And The Purpose Of Law School

Read more about Pennsylvania child molestation lawsuits.

The big legal news in Pennsylvania last week was of course the indictment of former Penn State assistant football coach Jerry Sandusky for allegedly sexually abusing at least eight children on or around Penn State. Being a civil litigator who has sued universities and has represented victims of sexual abuse on college campuses, I felt compelled to say something, so I wrote about Penn State’s potential liability in civil lawsuits brought by the victims. I reviewed and cited cases and statutes; you know, the stuff lawyers do when they want to get things right.

Then I read the news today, oh, boy.

In the New York Times:

“It’s a huge uphill battle to collect from the state,” said Saul Levmore, a professor and former dean at the University of Chicago Law School. “Plaintiff lawyers love to jump up and down about $100 million settlements, but there are a lot of hurdles in the way to that.”

Doriane Coleman, a professor at the Duke University School of Law, said that unlike the Catholic Church, which was the target of previous child abuse lawsuits, Penn State is a state institution and thereby should be protected by a doctrine known as sovereign immunity, which in essence protects state entities — and possibly state employees acting in the normal course of their jobs — from tort claims.

“I see this as very difficult to overcome,” Coleman said.

The esteemed law professors (I’ve referenced Coleman’s work favorably on this blog before) should have read my post: Penn State is not a “state institution.” Pennsylvania State University, like Temple University, Lincoln University, and the University of Pittsburgh, is part of Pennsylvania’s Commonwealth System of Higher Education, and is a “state-related university.”

Let Pennsylvania’s auditor general explain:

In 1855, the Pennsylvania legislature chartered the school that later became known as The Pennsylvania State University of the Commonwealth System of Higher Education. … The college became The Pennsylvania State University in 1953. Today, as part of the Commonwealth System of Higher Education, The Pennsylvania State University receives approximately 8 percent of its unrestricted fund revenues from the Commonwealth and is one of four state-related universities.

State-related universities don’t enjoy sovereign immunity. Doughty v. City of Philadelphia, 141 Pa.Commonwealth Ct. 659, 596 A.2d 1187 (Pa. Commw. Ct. 1991)(denying Temple University tort tmmunity). That’s in contrast to the universities in the Pennsylvania State System of Higher Education (PASSHE), which are immune. Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988).

[Addendum: In the comments, a smart “Guest” notes that Doughty was fact-specific to Temple University, and that the same analysis might not apply to Penn State. The commentator is right — Doughty is specific to Temple University — but there’s reason to believe Pennsylvania courts would not recognize Penn State as having sovereign immunity. In 1999, for example, the Pennsylvania Supreme Court firmly held “PSU is not an agency of the Commonwealth” for purposes of exemptions from real-estate taxation. Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 94, 731 A.2d 1272, 1273 (1999). I’ve cut and pasted at the end of this post the pertinent part of their reasoning.

I don’t see any reason why the analysis would be different for tort immunity, and I find it important that, although Penn State has been sued in the past, it has never really pushed the sovereign immunity argument.]…

Continue Reading Law Professors: Check Legal Blogs Before Adding Your Two Cents

[UPDATE: The returns are in. Wecht (D) won the Superior Court race and Covey (R) won the Commonwealth Court race. Every judge up for retention was retained. For the new seats for Court of Common Pleas, Chester and Delaware went to the Republicans and Montgomery went to the Democrats. See more detail at the Pennsylvania Department of State’s Election Returns website.]

Admit it, my fellow citizens of Pennsylvania: you’re clueless who is running for judge. It’s okay. Even lawyers rarely recognize most of the candidates.

A few months ago I put together a voter’s guide for the Philadelphia judicial primary to try to corral the dozens of candidates into a single page that would at least answer the most basic questions about who the heck these people are who will be deciding matters of life, liberty and pursuit of happiness. The response was positive, so I’ve put together one for the upcoming judicial elections. I only have so much time, so I’m going to do the state-wide judicial elections (Supreme, Commonwealth, and Superior Courts) and then the Court of Common Pleas in Philadelphia, Montgomery, Bucks, Chester and Delaware Counties.

C. Dale McLain, president of the Pennsylvania Bar Association (PBA), put together a “Ten Traits to Consider When Voting For Judges” guide (PDF) which fairly describes the non-partisan traits you want in a judge, like trial court experience and a record of community involvement.

Here’s the problem: investigating judges to see if they have those traits is nearly impossible. The most that a typical voter knows about the candidate is their party.

Too busy to read on? Here’s the short version: Except for a few Philadelphia County candidates (see here), none of the candidates have been declared unqualified by the bar association and each seems to fairly represent the ideals of their political party. You can safely vote “yes” on retention (or abstain) and then vote the party line for the new judges.

In many ways, the race as a whole is summed up by the Commonwealth Court race between Boockvar (D) and Covey (R). Boockvar used to represent employees who claimed discrimination by their employers. Covey used to defend employers from discrimination claims. Pick which side you tend to sympathize with and run with it.

For the state-wide candidates, all of the retention judges have (obviously) served as judges, so I’ve dug up a substantive court opinion written by each. Of the candidates running for the Commonwealth Court and Superior Court vacancies, only one of them has previously served as a judge, so I’ve tried to find some detail on what the others did in their practice as lawyers. As I’ve written about before on this blog (e.g., Why Should Human Rights Campaign Applaud The Lawyers Who Fight It? and Judging Lawyers By Their Causes), I don’t think lawyers should be judged by their clients, but they should be judged by their causes. Putting on a suit and cracking open a casebook doesn’t absolve someone of all personal responsibility for their decisions.

Like with the primary guide, I’ve taken candidates, linked to what seemed to be the most authoritative website about them, and then included here what I thought was the most substantive information provided about them. Every judicial candidate says they want to be “fair” and “unbiased,” but unless you know them personally (or know someone who does) the only real information we have to go on is their professional experience. A qualified judicial candidate should be able to describe, with some specificity, their professional interests and accomplishments.

I highly recommend voters also check out the League of Women Voters’ Smartvoter.org page on Pennsylvania, which lists all of the candidates by county and gives some background, and the Pennsylvania Bar Association’s PA Vote Smart, which has PBA’s evaluation of each state-wide candidate.

Before we start, a quick civics lesson. The highest court in Pennsylvania is the Pennsylvania Supreme Court, which has the final word on the Pennsylvania Constitution, statutes, and common law. Like the United States Supreme Court, there are few cases the Pennsylvania Supreme Court is required to hear; instead, the court decides, at its discretion, which appeals from the intermediate appellate courts it wants to hear.

Below the Supreme Court, Pennsylvania has two intermediate appellate courts, the Superior Court and the Commonwealth Court. That is unusual: most states have just one intermediate appellate court. Most cases are, by default, in the Superior Court. Most everyday citizens won’t encounter the Commonwealth Court unless they’re suing the government or if they’re appealing a workers’ compensation or unemployment decision.

Below those intermediate appellate courts are the Courts of Common Pleas for each county. There are Civil, Criminal, Family, and Orphan’s Divisions within many of those, but generally you just vote for a judge to the Court of Common Pleas for your county and then the court administration, lead by the President Judge of each county, figures out where to assign the judges within that county.

Below the Courts of Common Pleas are the municipal courts (sometimes called “small claims court”) which hear civil matters below a certain monetary threshold (usually $10,000 or lower) and some summary criminal offenses. In the interest of time and space, I haven’t discussed the municipal court candidates, but Smartvoter.org lists them.

Want my opinion? Retain all appellate judges, then vote David Wecht for Superior Court and Kathryn Boockvar for Commonwealth Court. The only Court of Common Pleas candidate I know well enough to endorse is Richard Haaz in Montgomery County.

State-Wide — Pennsylvania Supreme Court — 1 Retention

Only one Supreme Court position is on the ballot, and it’s the retention voter for Justice J. Michael Eakin, a Republican who, prior to becoming a judge, practiced primarily in Cumberland County. As a matter of history, Supreme Court Justices rarely lose retention elections unless they have written controversial opinions or if the court itself has recently been involved in some sort of controversy. Lawyers find many issues to disagree on, and I don’t agree with Justice Eakin on everything, but I think few lawyers would say Justice Eakin is controversial.

A common issue in a variety of cases — personal injury, workers’ compensation, tax, etc. — is whether a given person is an “employee” of a company or an “independent contractor.” As a very crude generalization, injured plaintiffs and workers tend to prefer that person be deemed an “employee” while defending companies and insurers tend to prefer that person be deemed an “independent contractor,” but it’s more an issue of legal nuance than an issue of politics. Justice Eakin has filed more than one dissenting opinion arguing for a more narrow view of when a person is legally an “employee.” See, e.g., the Brookhaven and Perrone opinions.

Justice Eakin’s most memorable dissent I’m aware of was in Porreco v. Porreco, where a wife sought to void a prenuptial agreement because the wedding ring she received (which was valued at $21,000.00 in the agreement) turned out to be worth, shall we say, a lot less. The majority of the Pennsylvania Supreme Court said that wasn’t enough to void the whole prenuptial agreement, and Justice Eakin dissented:

A groom must expect matrimonial pandemonium when his spouse finds he’s given her a cubic zirconium instead of a diamond in her engagement band, the one he said was worth twenty-one grand. Our deceiver would claim that when his bride relied on his claim of value, she was not justified for she should have appraised it; and surely she could have, but the question is whether a bride-to-be would have. The realities of the parties control the equation, and here they’re not comparable in sophistication; the reasonableness of her reliance we just cannot gauge with a yardstick of equal experience and age. This must be remembered when applying the test by which the “reasonable fiancée” is assessed. She was 19, he was nearly 30 years older; was it unreasonable for her to believe what he told her? Given their history and Pygmalion relation, I find her reliance was with justification. Given his accomplishment and given her youth, was it unjustifiable for her to think he told the truth? Or for every prenuptial, is it now a must that you treat your betrothed with presumptive mistrust? Do we mean reliance on your beloved’s representation is not justifiable, absent third party verification? Love, not suspicion, is the underlying foundation of parties entering the marital relation; mistrust is not required, and should not be made a priority. Accordingly, I must depart from the reasoning of the majority.

(Footnote omitted.) I find that sympathy with “the realities of the parties” to be refreshing. More Justice Eakin dissents available here.

State-Wide — Pennsylvania Superior Court — 1 New Judge, 2 Retentions

The Pennsylvania Bar Association has a short summary of all the candidates and their questionnaire answers. Pennsylvanians for Modern Courts’ electoral page links to the videos of the candidates’ forum (mov file).

The PBA questionnaires helpfully ask the candidates to mention the five most significant cases they were involved in (if they’re currently a lawyer) or that they decided (if they’ve been a judge). Below, I’ve cherry-picked from that list one case for each candidate.

The highest-profile contested race in the state is between David N. Wecht (Democrat) and Vic Stabile (Republican) for the one open seat on the Pennsylvania Superior Court. Wecht is “highly recommended” by the Pennsylvania Bar Association while Stabile is “recommended.”

David Wecht is currently a trial judge in Allegheny County who was, until January of this year, assigned to the Family Division and so is primarily known for his family law opinions. He’s known as a scholarly judge; Yale B.A., Yale Law J.D., and he’s an Adjunct Professor at Duquesne and University of Pittsburgh’s law schools. In one family law case, Judge Wecht included a notable footnote arguing that Pennsylvania’s “presumptions” about paternity — e.g., that “regardless of biology, the married people to whom the child was born are the parents” and that “in the absence of a marriage, the person who has cared for the child is the parent,” per Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997) — were antiquated in light of current family relations and the easy availability of DNA testing:

In [Hamersley v. Brown, (York County, June 26, 2006)], Judge [Richard] Renn has encouraged the Superior Court to review the applicability of the presumption of paternity and estoppel doctrine in view of the current state of the family. The undersigned joins in Judge Renn’s reasoning. In an age when family relations have changed and DNA testing can provide prompt and accurate paternity determinations, these doctrines may have outlived their usefulness. In an age when there is easy access to court records via the Internet, children whose paternity has been questioned enjoy little security in ‘knowing’ their father based on nothing more than what our Supreme Court has called the ‘two great fictions of the law of paternity.’ Brinkley, 701 A.2d at 180. In any case where paternity is questioned, there necessarily is a question as to whether the family is still intact. And, given the fluid nature of today’s family, it is hard to define what an intact family is. With changing social realities and the ready availability of accurate genetic testing, the twin ‘fictions’ of presumption of paternity and paternity by estoppel increasingly seem quaint vestiges of a bygone era. In their current form, these devices are no longer sound law or policy. As Chief Justice Flaherty reminded us in Brinkley, cessante ratione legis cessat et ipsa lex (where stops the reason, there stops the rule). 701 A. 2d at 181. The reason has stopped. The rule should as well. It is time that our appellate courts revisit the issue.

Vargo v. Schwartz, 2007 Pa. Dist. & C. 4th, 15–16 (County Ct. 2007).

Vic Stabile is the managing partner of Dilworth Paxson’s Harrisburg office. Dilworth Paxson is a large law firm which “conducts a broad and diverse regional law practice representing non-profit foundations, a wide variety of clients ranging from Fortune 500 companies to closely-held businesses, governmental entities and individuals,” and Stabile’s practice is consistent with the firm as a whole, focusing on “commercial litigation, construction law, administrative agency law, corporate governance, municipal law, procurement, and gaming law.” A quick peek at the docket in the United States District Court for the Middle District of Pennsylvania shows him as listed counsel in two cases: in one, Stabile represents a taxpayer bringing an action against the United States to recover an overpayment of taxes paid on real estate received as a gift; in the other, Stabile is defending a biotech company that is being sued by a consultant for allegedly failing to pay the consultant.

Stabile’s questionnaire lists as a notable case Bedford Downs v. State Harness Racing, in which he represented the applicant for a harness racing license who was turned down in part because of his deceased grandfather’s alleged connections to organized crime figures. He sued the Pennsylvania State Harness Racing commission; in 2007, the Pennsylvania Supreme Court agreed that “guilt by ancestry” was impermissible, and so reversed the decision on those grounds.

The two judges up for retention are John T. Bender and Mary Jane Bowes, both of whom are “recommended” by the Pennsylvania Bar Association.

Judge Bender lists among his notable opinions Capoferri v. Children’s Hospital of Philadelphia, 893 A.2d 133 (Pa.Super. 2006), a case well known to lawyers who litigate medical malpractice cases. In Capoferri, Judge Bender, writing for an “en banc” panel (as in, nine judges instead of the normal three) held that trial courts were required to allow lawyers in medical malpractice cases to ask jurors what they had heard and thought about a “medical malpractice crisis” in Pennsylvania. The case was decided in a time when Pennsylvania was inundated with insurance company and healthcare company advertisements claiming such a “crisis,” and thus a time when the jury pool was strongly inclined to rule against malpractice plaintiffs. Lawyers who represent injured persons still consider this one of the more important and helpful opinions of the last few years, and it is cited by the Pennsylvania Standard Suggested Civil Jury Instructions.

Judge Bowes’ list of cases apparently didn’t make it to the PBA’s website, but her most frequently cited opinion is probably Sullivan v. Chartwell Investment Partners, 2005 PA Super 124, in which she overturned a trial court opinion dismissing a former employee’s claim against their former employer for violations of the Wage Payment and Collection Law and asserting claims relating to breach of contract, promissory estoppel, fraud, and negligent misrepresentation. The opinion was notable for its handling of the “gist of the action” doctrine (read more at the link), a quirky doctrine of Pennsylvania law that trips up plaintiffs simultaneously alleging a breach of contract and then some other claim like negligence or tort, because, under the doctrine, the “gist of the action” is one or the other. Sullivan took a nuanced view, and held that there’s a difference between alleging you were defrauded into a contract and alleging that the other side later broke that contract, and so you can have both claims at the same time. Plaintiffs in commercial and employment contract cases often cite Sullivan, and other courts often look to the case to decide these issues.

State-Wide — Pennsylvania Commonwealth Court — 1 New Judge, 3 Retention

As with the Superior Court, the Pennsylvania Bar Association has a short summary of all the candidates and their questionnaire answers. The questionnaires quite helpfully ask the candidates to mention the five most significant cases they were involved in (if they’re currently a lawyer) or that they decided (if they’ve been a judge). Below, I’ve cherry-picked from that list one case for each candidate.

For the one vacancy, Kathryn Boockvar (Democrat) is running against Anne E. Covey (Republican). Both are “recommended” by the PBA and, ironically, both are from Bucks County and both have experience primarily in employment and labor law, though on opposite sides of the “v”.

Boockvar started out for her first few years as a public interest attorney who worked on health policy research and represented low-income clients in court before opening up her own firm for ten years representing employees with employment discrimination / FMLA claims and claimants for social security disability. For the past three years she’s worked with the Advancement Project, a non-partisan civil rights group that tries to increase access to electoral participation.

Covey started out as assistant counsel to Pennsylvania Labor Relations Board, then spent a few years at Blank Rome and McCarter & English (both large corporate firms) defending corporations sued by their employees. She then formed her own firm and continued “representing employers in discrimination claims, contract disputes, collective bargaining negotiations and all aspects of the employment relationship from pre-hiring considerations through post-termination concerns,” and was was appointed to the PLRB itself by Governor Schweiker and then reappointed by Governor Rendell. She wrote a book, The Workplace Law Advisor, to guide employers on matters of employment law.

The three judges up for retention are Reneé Cohn Jubelirer, Mary Hannah Leavitt, and Robert E. Simpson, Jr., all of whom are “recommended” by the PBA.

Cohn Jubelirer’s most notable opinion is probably Jones v. City of Philadelphia, 890 A. 2d 1188 (Pa. Commw. Ct. 2006), another en banc opinion which addressed a question inexplicably still not answered by the Pennsylvania Supreme Court after more than two hundred years: whether an individual can bring a private lawsuit for monetary damages alleging violations of their rights under the Pennsylvania Constitution. Jones examined that question in terms of Article 1, § 8 of the Pennsylvania Constitution — which is almost identical to the Fourth Amendment of the United States Constitution — but found that, in the absence of any state statutes authorizing any sort of constitutional claim, the Commonwealth Court couldn’t permit the claim. I disagree with the analysis (I agree more with Judge Smith-Ribner’s dissent), but that’s just my opinion, and Cohn Jubelirer’s opinion is undeniably thoughtful, meticulous, and sincere.

Leavitt’s list of cases also wasn’t attached to the questionnaire on the PBA website, but I think one of her more notable ones is DeWeese v. Weaver, 824 A.2d 364, also an en banc case, in which Judge Leavitt, on behalf of the court, struck down an attempt to tuck tort reform (i.e., a repeal of joint and several liability) into a bill that was actually about DNA testing of criminal offenders. The bill blatantly violated Article III, Section 3 of the Pennsylvania Constitution, which provides that “no bill shall be passed containing more than one subject, which shall be clearly expressed in its title,” but the issue was politically charged, and it was refreshing to see the Commonwealth Court reign in the General Assembly from ignoring the procedures required by the Pennsylvania Constitution. In a followup order the Commonwealth Court formally declared the bill unconstitutional and void. A similar tort reform bill was passed earlier this year (I wrote in opposition to it), through more appropriate procedures.

Simpson, Jr.’s list of cases similarly wasn’t attached to the questionnaire on the PBA website. I must confess I’m not familiar with Judge Simpson’s work, but from reviewing his dissents I can tell he’s a stickler for clean, clear rules. Consider this dissent in the Dumbert unemployment appeal, in which the majority of the Commonwealth Court, sitting en banc, permitted an unemployment appeal that was faxed after hours, when the rules require the appeal be filed — whether in person, by delivery, or by fax — by the close of business. As Judge Simpson notes, although this approach is compassionate on the surface, the end result is to irrationally create a loophole just for fax users. Before anyone jumps to conclusions about being unfair to the poor, consider the Cope MCARE insurance case, in which he similarly dissented, arguing that a doctor who sent a copy of a ‘writ of summons’ filed by a patient to his malpractice insurance carrier, but not the state-run MCARE insurance subsidy, shouldn’t be able to use the MCARE insurance coverage because he hadn’t requested it within the time limits required by the statute.

Now for Courts of Common Pleas in the greater Philadelphia area, including Bucks, Chester, Delaware, and Montgomery counties. …
Continue Reading 2011 PA Judicial Election Candidate Guide (Plus Philadelphia, Montgomery, Bucks, Chester and Delaware Counties)

The Philadelphia Bar Association’s annual Bench-Bar conference is always interesting and, true to legal conference form, usually held some distance away from the actual location they’re discussing, and so a bunch of Philadelphia lawyers and judges went to Atlantic City to discuss Philadelphia. For the long version, see the Philadelphia Bar Association’s collection of the speeches turned into podcasts. For the short version, see The Legal Intelligencer:

The biggest inequities in the Philadelphia court system are not caused by corrupt judges, but by a collision involving the lawyers’ monopoly in providing legal services, harsh economic realities facing young lawyers and litigants who can’t afford attorney fees, a panel at the Philadelphia Bar Association’s annual bench-bar conference said.

Philadelphia Common Pleas Court President Judge Pamela Pryor Dembe said that “in this do-it-yourself world, there are going to be more and more people pushing for ways to access justice without lawyers.”

The problem, of course, is money:

Course planners Superior Court Judge Anne E. Lazarus and Eric H. Weitz, a plaintiffs attorney with Messa & Associates, posed hypotheticals of how finite resources in the court system and the volume of court cases can collide and perhaps produce injustice.

Lazarus noted that in the court’s civil division, judges have to resolve 121 cases a day just to keep pace with the number of cases filed a year. “But we as a society are not willing to discontinue a program to house the homeless so we can hire 20 more judges in Philadelphia,” Lazarus said.

Weitz suggested that in custody matters that the more “resource-rich” parent wins, often by wearing down the other parent, and judges are reluctant to upset the apple cart by overturning already-existing custody arrangements.

There is nothing new about that. Google “access to justice” and limit to results in the past 24 hours and you’ll still get thousands of results. I did that and immediately saw an article from Minnesota Public Radio arguing that “Access to justice differs depending on one’s bank account.” There was also a press release from the White House trumpeting the U.S. Department of Justice Access to Justice Initiative, formed to deal with that exact issue.

The numbers are staggering. In the criminal arena, public defenders routinely have thousands of cases to defend. Know any plumbers that can fix two thousand toilets in a year? I don’t, and fixing a toilet is usually quicker than ensuring someone’s search and seizure rights are protected and that they’re zealously defended at a trial. In the civil arena, more than 50 million Americans qualify for federally funded legal assistance, but funding for direct legal service non-profits is so low that only a tiny fraction of those get any help at all.

The great irony is that, while we have a huge unmet demand for legal services, we also have a huge oversupply of lawyers, but there’s apparently no way to bridge the two. As Judge Dembe said at the conference, there are many young lawyers with an “enormous amount of debt attached to their ankles.” For many, it’s so much debt that they don’t think it’s worth it for them to try their hands at being low-cost, friendly neighborhood lawyers. They’re better off escaping the law entirely and begging their parents to help them pay the student loan bills while they look for greener pastures.

Even young lawyers who have the means and the motivation to build their own practices have problems building a book of business because they need experience to get experience and clients rarely know how to begin looking for lawyers, much less how to find inexpensive, qualified lawyers. The panelists made some negative remarks about ads on the side of a bus; in reality, even lawyers like me who went to law school in Philadelphia and have worked in the legal community here for years only really know a handful of lawyers in each of the various practice areas. I can count on my fingers the number of criminal defense lawyers who I would think to call if I was arrested — how would someone who has spent no time at all interacting with lawyers know who to call? Googling “best lawyer in Philadelphia” isn’t going to help.

Smart people have proposed clever solutions. Lawyers and law professors have rightly raised a variety of concerns about services like Avvo and the dreadfully-named Shpoonkle, but, as someone who has received flowers and chocolate from people for doing nothing more than giving them the name of a competent lawyer who charges a reasonable fee, I can attest that there is tremendous demand out there for a service that connects clients with minimal financial resources to cost-efficient lawyers.

Some people and companies, notably including legal form providers, have proposed “unbundling” legal services to allow non-lawyers with some legal training to provide a discrete set of services, like preparing certain pleadings or arguing routine motions. Lawyers have a lot of differing opinions on that. Unbundling creates various client-service and professional-responsibility dangers, but it would likely make legal assistance, if not quite representation, much more affordable in certain circumstances.

Others, most commonly non-practicing lawyers who don’t have to square expenses versus revenue at the end of the month, have devoted their time to moralizing we do about the importance of pro bono service. Sure, Clarence Darrow worked tirelessly for clients of all economic backgrounds, and wasn’t paid at all for a third or more of these cases, but that phase of his life didn’t start until after he had made plenty of money representing the most evil and hated companies of the era, the railroads. Even then, he was in the unique position of having so many paying clients that he could afford to pursue his passions. Moralizing to lawyers today looking for just enough business to make rent doesn’t do anyone any good.

I have my own clever ideas, like ditching 3L year of law school to leave recent law graduates in a better position to effectively represent clients with modest resources.…

Continue Reading The Politics Of Finding A Lawyer In Philadelphia

When one of the leading ethicists, Peter Singer, reviews a book about human nature by one of the leading neuroscientists, Steven Pinker, it’s worth your time to see what the former has to say about the latter:

It is unusual for the subtitle of a book to undersell it, but Steven Pinker’s “Better Angels of Our Nature” tells us much more than why violence has declined. Pinker, a professor of psychology at Harvard who first became widely known as the author of “The Language Instinct,” addresses some of the biggest questions we can ask: Are human beings essentially good or bad? Has the past century witnessed moral progress or a moral collapse? Do we have grounds for being optimistic about the future?

…

The central thesis of “Better Angels” is that our era is less violent, less cruel and more peaceful than any previous period of human existence. The decline in violence holds for violence in the family, in neighborhoods, between tribes and between states. People living now are less likely to meet a violent death, or to suffer from violence or cruelty at the hands of others, than people living in any previous century.

…

Pinker argues that enhanced powers of reasoning give us the ability to detach ourselves from our immediate experience and from our personal or parochial perspective, and frame our ideas in more abstract, universal terms. This in turn leads to better moral commitments, including avoiding violence. It is just this kind of reasoning ability that has improved during the 20th century. He therefore suggests that the 20th century has seen a “moral Flynn effect, in which an accelerating escalator of reason carried us away from impulses that lead to violence” and that this lies behind the long peace, the new peace, and the rights revolution.

Apart from the book itself, you can find a much longer version of Pinker’s argument in his Edge.org Master Class from earlier this year. Sam Harris also interviewed Pinker about the religious aspects of his argument. It’s a compelling argument though, as Singer notes, our relative harmony lately could be dependent upon environmental circumstances, and a change in the climate or availability of resources could change things considerably. Call it The Road corollary.

This is a legal blog, though, so I try to find some sort of ‘legal’ excuse to post non-legal articles of interest, and here’s the legal angle for a venture into Better Angels of Our Nature. It’s a practice tip.

After Steve Jobs died, the professional trolls at the Westboro Baptist Church saw another opportunity for attention, and so they reached for it on Twitter:

No peace for man who served self, not God. #hellgreetedhim Westboro must picket funeral. #warnliving MT @applenws: RIP Steve Jobs 1955-2011.

Of course, the tweet bore the automatic software stamp of “via Twitter for iPhone,” and so the internet lulz promptly followed.

The informative part for our purposes is not that the Westboro folks are a bunch of obnoxious hypocrites, but, rather their response when called out on it:

Question tweeps: If Westboro uses iPhones during pickets, are they iPickets? :)We sing iPraise to our glorious King, who created the iPhone!

Which brings us back to Pinker. Humanity might be on “accelerating escalator of reason,” but not everyone is on for the ride. Some people’s brains are so fixed in their ways that they will not accept new ideas, new arguments, new facts, or even their own observations. Everything that comes in to them just gets contorted into brand new evidence in support of their worldview; that’s how the Westboro Baptist folks can tell themselves that God, rather than Steve Jobs, came up with the iPhone (guess which one is named on the patent?) and justify to themselves paying their own money over to a man they believe is damned to hell.

There are people who have the tools of reason, but they choose not to use them.

Your job as a lawyer is to avoid these people.
Continue Reading The Better Angels Of Our Nature And The Imperfect Client