New Matter Spring 2015

New Matter

THE AWARD WINNING PUBLICATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA www.chescobar.org

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Eight Attributes Needed to Run a Solo Practice

COM FORBES

FLYING SOLO:

– MAL

“DIVERSI

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SPRING 2015

CRAIG A. STYER 2015 PRESIDENT

PURVEYORS OF KNOWLEDGE:

How Bar Associations Will Become Key Players in the New Era of Legal Education

HOT TOPICS IN CRIMINAL APPEALS:

Persuasive New Case Law for Pennsylvania Practitioners

New Matter CCBA Officers Craig Styer, President Bill Wilson, President-Elect Christine Zaccarelli, Vice President Mary-Ellen Allen, Treasurer Patrick McKenna, Secretary New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess Brian Doyle J. Stoddard Hayes Mary LaSota Andrew Lehr Deborah Lewis Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Karyn Seace Alan Vaskas Bill Wilson

Content FEATURES Trial Tips From A Chester County Juror... 6

SPRING 2015

4

“Diversity:

Purveyors of Knowledge.......................... 8

The Art of Thinking Independently Together.”

– Malcom Forbes

Tell A Court Story – Jury Duty................ 10 Legal Aid of Southeastern PA................ 12 2014 Annual Meeting.............................. 14 Lawyers Give Boost to Endangered Book............................... 16 New Admittee Ceremony....................... 17 2015 President’s Dinner......................... 18 Bar Sail Attitude...................................... 20 Hot Topics in Criminal Appeals: Persuasive New Case Law for Pennsylvania Practitioners........................... 21 Flying Solo: Eight Attributes Needed to Run a Solo Practice................................... 22

IN EVERY ISSUE President’s Message................................... 4

CCBA Staff Wendy Leeper Executive Director

Featured Member Profile Nancy W. Pine & Norman J. Pine................... 15

Emily Boulanger Communications & Event Manager

From the Bench.........................................28 YLD Details.................................................29

The Chester County Bar Association’s monthly publication, New Matter, has been provided to Bar Association members for four decades.

A valuable aspect of CCBA’s membership, New Matter aims to provide our members with information pertaining to current issues facing the practice of law, historic legal issues, continuing legal education opportunities, Chester County Bar Association activities, programs, meetings and functions, practice tips and procedures for attorneys, and items of personal interest to our membership.

The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association.

All rights reserved. No portion of this publication may be reproduced electronically or in print without the expressed written permission of the publisher or editor.

The Blank Page..........................................30 Tech Tips.....................................................32 Chester County Trial Practice Suggestions from a Chester County Judge................. 24

From the Archives New Matter—October 1981........................ 34

WANTED...

Your Ideas!

If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at eboulanger@chescobar.org or (610) 692-1889.

PUBLISHER: Hoffmann Publishing Group 2921 Windmill Road, Suite 4, Sinking Spring, PA 610.685.0914 x201 • hoffmannpublishing.com FOR ADVERTISING INFORMATION: Tracy Hoffmann, tracy@hoffmannpublishing.com

President’s Message

H

appy New Year! I am honored to serve as the President of the Chester County Bar Association for 2015.

As some of you may know, I’m a life-long resident of Chester County and am proud to call this my home. Chester County is a wonderful place to live, work and raise a family.

I’ve been fortunate to be a member of the Association and to practice law in Chester County for the past 18 years.

Craig A. Styer, President

“DIVERSITY:

The Art of Thinking Independently Together.”

– MALCOM FORBES

While planning to serve as President, I thought about how we can make our great Association and County even better. This past fall, while watching 60 Minutes, a television show I don’t typically watch, I saw a segment about an organization called Year Up. This organization educates and trains underprivileged youth and places these individuals in meaningful internships (and ultimately jobs) with Fortune 500 companies in New York City and elsewhere. At the end of the segment, Ken Chenault, CEO of American Express, explained how this program could serve as a template for other business organizations around the country. Mr. Chenault described it as a win-win for the community and for the participating businesses.

As I watched the program, I realized that, in our own way, we could emulate this program in Chester County. In thinking further, I was struck by the fact that, while the demographics of our County have changed significantly over the past 20 years, the demographics of our Bar have not. In my view, we have too few diverse attorneys in our County and even fewer who are members of our Association. We must understand that diversity is good for business. Many corporations and governmental entities today insist that their lawyers reflect the diverse society in which we live. More importantly, advancing diversity and inclusion is the right thing to do.

In that regard, the Board of Directors recently approved the formation of a Diversity Committee and JP Sanchez of Lamb McErlane and my partner, Todd Rodriguez, have agreed to serve as co-chairs of the Committee. Although the Committee is free to pursue issues that it believes are important to increase diversity and inclusion in our legal community, the signature program for the Committee will be a First Year Diverse Law Student summer program. This program is modeled after successful programs already operating in Philadelphia and Montgomery Counties. The program promotes the hiring of a diverse 1L law student to work in your office for eight weeks during the summer months. The students will be paid $500 per week and during the program they will be exposed to the legal community in Chester County with the obvious goal that eventually they will become practicing attorneys in our County and members of our Association.

As of the writing of this message, the Association has received commitments from my firm (Fox Rothschild), Gawthrop Greenwood, Lamb McErlane and MacElree Harvey to participate in this program.

I thank them for their leadership with this important initiative. If you or your firm would like to participate in the program, please let Wendy or me know. We need your support. Please contact Wendy Leeper at wleeper@chescobar.org or (610) 692-1889.

I truly believe this initiative will provide opportunities to individuals who may never have the opportunity to practice in our County. At the same time, we will make our Association and County even better. Thank you for the opportunity to serve as President this year.

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New Matter

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CCBA Feature

r o r u yJ

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un o C ter

From

s e h aC

By Tim Rayne, Esquire

A

good friend of mine recently served on a Chester County My friend indicated that, although it was certainly not a deterJury in a five day civil car accident case. After the verdict, mining factor, the fact that the Defense counsel was organized I had lunch with him to discuss his experience and to and prepared made him trust him more than Plaintiff ’s counsel. get into the mind of a real Chester County Juror. The comments about his experience were enlightening and here are some Tips TIP #2 from a Chester County Juror.

Be Careful About the Length of Your Speeches and Witness Exams and Use TIP #1 Exhibits to Keep Jurors Interested Organization & Preparation Matter Much to my friend’s dismay, Opening Statements took nearly My friend took particular notice of the organization and prepa- a full day. He said that Plaintiff ’s counsel rambled on for nearly ration of the two attorneys. Plaintiff ’s counsel was disorganized. three hours. He used no exhibits during Opening, was relying He brought boxes and boxes of documents to court. His exhibits on notes and was constantly fumbling through papers. Defense were unmarked. His table was messy. Conversely, Defense counsel counsel was more focused and organized during Opening, but was organized and well-prepared. His exhibits were in binders spoke for an hour and a half. and he had copies for the witness, counsel and judge. The Defense table was neat and organized.

Continued on page 7

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New Matter

www.chescobar.org Continued from page 6 The Closing Arguments were also quite lengthy. However, my friend was impressed by Defense counsel’s use of a PowerPoint presentation and the actual Verdict Slip. He felt that both helped him understand the case and follow counsel’s argument.

Expert Witness Depositions were also way too lengthy. My friend indicated that there were multiple doctors who testified via videotape and examinations were two to three hours each. He said that both he and his fellow jurors were overwhelmed, bored and nearly put to sleep by the medical testimony. My friend was very frustrated by the fact that a relatively straightforward rearend car accident case took five days of his time.

TIP #3

Credibility Is Key The verdict in the case was for the Plaintiff but for an extremely small amount. My friend indicated that, ultimately, the decision was based on the fact that they found the Plaintiff not very credible. Apparently, the Plaintiff ’s trial testimony conflicted with his Deposition and the medical records in multiple areas. In addition, the Defense doctor indicated that the Plaintiff claimed that he had very limited range-of-motion and was significantly disabled, and yet a private investigator caught the Plaintiff doing things inconsistent with those claims. The Plaintiff also overreached in terms of his testimony, which provided various stories about his pain, disability and the impact on his relationships in his family, which the jury found unbelievable. In the end, the jury’s verdict was for only the amount of the initial Emergency Room visit, leaving uncompensated tens of thousands of dollars in past and future medical expenses as well as non-economic damages for pain and suffering and loss of life’s pleasures.

The lesson to be learned is that speeches and witness examinations in general, and particularly videotaped doctor depositions, should be carefully prepared and be as short as possible so as not to bore the jury. From my experience and study on the subject, Opening Statements and Closing Arguments should last no longer than 45 minutes. The jury just does not have an attention span that will last longer than that. Except in the most complicated cases, The lesson to be learned is that our clients must be straightforthe direct examination of a doctor should take no longer than a ward, honest, and conservative in terms of their claimed damages. half hour or else you run the risk of losing the jury’s attention. In If the jury believes that a Plaintiff is overreaching, exaggerating order to keep things interesting, exhibits should be used whenever or fabricating injuries, it will kill the Plaintiff ’s credibility and possible such as photographs, diagnostic films, charts regarding his or her case with it. medical treatment or medical expenses, etc.

Goldberg, Meanix, McCallin & Muth Litigation Referrals Welcomed If you need help with a litigation matter, we can help • Develop a theme • Prepare settlement prospectus or brochure • Jury focus your case • Depose and find experts • Consult with you on trial strategy

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New Matter

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CCBA Feature

Purveyors Knowledge:

How Bar Associations Will Become Key Players in the New Era of Legal Education

By ScholarLab.com

T

he verdict is in: Crisis has settled upon the legal sector. In 2012, only about 50% of new law graduates were practicing law within nine months of graduation. 27.7% were actually unemployed or underemployed, pursuing other degrees or leaving the industry altogether. At the same time, longstanding law practices continue the struggle to survive, slashing the jobs of even seasoned legal professionals.

The culprits? Well for one, more and more new law graduates are appearing annually and they’re unfamiliar with the opportunities available to them beyond junior roles at law firms (who, by the way, aren’t hiring). A growing client-base needing legal services for less means that clerks and paralegals are taking the roles that new lawyers once held. Alternatives that have popped up—virtual firms, automated risk management services, and online legal and dispute resolution—offer niche services at a fraction of the cost of law firms. We know this much: the game is changing and everyone will have to adapt. But in the eye of the storm, even legal experts say it’s difficult to know what the future of law practice will actually look like.

Burlington Studios, 1912

Bridging The Gap: Building CLE For New Lawyers And Legal Professionals And yet, amidst this time of crisis, bar associations have a In the intricate conversation about why new graduates and strange new opportunity to step up and incite change. This first and second year lawyers can’t find paid positions, Ida Abbott, means reorganizing to become central hubs for Continuing Legal award-winning consulting lawyer and author, puts it plainly: Education (CLE), creators of modern knowledge communities, They’re inexperienced. At least that’s how they’re being perceived and indispensable resources for legal professionals and law firms by clients and firms alike. The industry, she says, is losing so many alike. Associations like the National Association of Bar Executives, brilliant minds because they need professional experience but are Iowa State Bar and the Pennsylvania Bar Institute have already unaware of different legal careers paths. In creating rich, interactive, begun to build virtually-minded programs that reach out to and accessible-from-anywhere learning environments, institutions new graduates and longtime practicing lawyers, get a dialogue who can bridge the gap have the potential to become as relevant going and a pulse on the most pressing subjects now needed in as law schools themselves. And that’s where Web 2.0 comes in.

Continuing Legal Education.

Continued on page 9

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New Matter

www.chescobar.org Continued from page 8

Law Goes Digital: Modernizing CLE In Content And Delivery Why modernize? Like virtually every other industry, legal has seen an eruption of new commercial sectors. Online risk analysts who work virtually to provide legal advice; E-discovery specialists and litigation support that are research-oriented; virtual firms and web-based services that allow legal advisors to login from all over the world, enabling longer-hour access, rapid contact and communication, and often, reduced costs for the end client.

With these online-based enterprises, an entirely new skillset is emerging in the legal sphere. How do we get our seasoned legal professionals up to speed?

Many bars are already looking to the on-the-go production of content now possible via mobile capture and platforms that go past simple live streaming from a physical facility. The technologies offer a way for lawyers and legal educators alike to engage in frictionless teaching and learning that can happen from their office desk or their iPhone or their kitchen table or even, from the courtroom. Bars can use sophisticated CLE programs to educate in job transitioning and help fashion a greater fluency with new technologies in the sector, ensuring that as the field modernizes, lawyers can modernize their own skills with it.

Building The Network: Linking Learning With E-Mentorship Exhibit A: Law Without Walls. It’s a new initiative by the University of Miami law school. It brings together firms, legal corporations and law schools worldwide, setting students up with mentors and advisors. Among a mob of new challenges, creating virtual opportunities for new graduates to connect with one another and with more experienced lawyers, presents a major opportunity for bar associations to step up and be the matchmaker.

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Representation, consultation and expert testimony in disciplinary matters and matters involving ethical issues, bar admissions and the Rules of Professional Conduct

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As the pre-existing middleman in the law community, bar associations can leverage the wealth of online technologies at their fingertips to construct a sustainable network: create cross-state, cross-province and cross-nation dialogue, facilitate information exchange, create online programs on competitive techniques for job seekers in the field. Help foster exposure to seasoned lawyers via online courses, webcasts, workshops and seminars. Establish e-mentorship programs and pair new legals with the role models that can help them develop the distinct professionalism that isn’t taught in school.

With these changes, bar associations have the opportunity to center themselves in what will be a new era of practicing law.

Lawyers across North America are calling for change and if bars can be the ones to respond, they’ll become more than administrators, they’ll become a part of the education process at large.

Cited: • The Real Employment Numbers for the Law Class of 2012 • Connecting Core Competencies: New Graduates and the Bar (Lecturer Ida Abbott)

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New Matter

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CCBA Feature

Te l l a Court Story –

Now you can guess—there is no dodging jury duty in Chester County just because you are an attorney. So, a long, long time ago, I was summoned for jury duty at the Historical Courthouse in West Chester. Our obligation was to serve on a jury to its duration or to be available for jury duty for 2 days, whichever took place.

It was different from television. There were maybe 80 of us in one room in the basement of the courthouse. We were checked off as we entered and given a pretty red sticker with a number on it identifying each of us as a prospective member of a jury. Although I was not the first juror to arrive I did get the number one sticker. My guess is that because I knew one of the Jury Commissioners, she decided to try to make me feel at home.

We filled out a short questionnaire and then just sat and waited for something to happen. The first day nothing happened. One of the staff explained to us that if we wanted to bring in reading material or even a video (VHS—Hence a long, long time ago) that we could. So the next day I brought in my pristine copy of

By Charles T. DeTulleo, Esquire Star Wars to watch. We (yes, there were several fans of the movie) were in the middle of watching the or those of you who are PBA (Pennsylvania Bar Association) movie and a staff member stopped members, you have probably read a series of stories they us to announce that we had to call “War Stories.” No criticism of the PBA but I always take a seat based on the number thought that term was not really appropriate for attorney stories. on our sticker. There I sat, in the So, I decided that maybe attorneys would be willing to write a first seat. I already knew that this story about an experience, or sometimes the horror, in a courtroom. was not a good sign.

Hence this story to start the wave.

There was a total of about 30 BEING IN A JURY of us chosen to go to the courtroom of The As I understand the history of attorneys being selected for Honorable Michael Joseph Melody, Jr. (now deceased). Upon jury duty, there was a time when there was a way to get out entering the courtroom, the first 12 prospective jurors took seats of jury duty. All you had to do was call the office of the Jury in the jury box to the left of the bench where Judge Melody Commissioners and tell someone there that you were an attorney sat. Judge Melody was busy looking over some document as we and bingo, you dodged that bullet. However, it seems that one filed into his courtroom and didn’t notice me as being one of the of the sitting judges on the Court of Common Pleas of Chester prospective jurors. I had met Judge Melody when I first started County was summoned for jury duty. And, he decided it was his practicing in Chester County (a long, long time ago) and had duty to participate in the process. And, he responded to the call. been in his courtroom often enough for him to call me “Chuck.”

And, he was chosen for jury duty. I don’t know if the last part is accurate but it sounds good.

Continued on page 11

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New Matter

www.chescobar.org Continued from page 10 As the group of jurors began to settle in and take a seat, Judge That was easy enough. Why didn’t I think of that? Did you every Melody lifted his eyes from the document he was reading and try getting a continuance in Delaware County? peered to his left. As he began to scan the jury box his gaze became a concentrated stare and developed into an optical laser There I sat thinking that Delaware County would not believe beam pointed at me. As he pierced my body with the laser beam that I was on jury duty. No challenge for cause throughout the of his stare he proclaimed to all in the courtroom, “And ladies prolonged process. There was only one chance left. Would either and gentlemen, I see we have Mr. DeTulleo on our jury today. side use one of their priceless peremptory challenges to strike He is one of Chester County’s attorneys. Good morning to you me off the jury? As both sides passed the peremptory sheet back Mr. DeTulleo.” I returned the courtesy and said, “Good morning and forth I couldn’t help wondering what was going through your honor.” So much for no one really knowing who you are. the minds of both sides. Does the prosecution want a Criminal Defense attorney on a jury? Does the defense want a Criminal After some brief procedural statements the voir dire started. Defense attorney on a jury? And why would you?

Judge Melody conducted the questioning. He went over the standard questions and eventually got around to asking who After the sheet was completed it was given to the tipstaff who on the prospective jury panel knew anyone. He started with gave it to Judge Melody. He then got a broad grin on his face the usual suspects, prosecutors and defense attorneys. When he and looked directly at me again. I now had two laser piercings asked if anyone on the panel knew them I raised my hand. It was from his gaze. He gave the list to one of his staff who then methe only hand that went up. Judge Melody asked if my knowing thodically read out the peremptory strikes to excuse the jurors them would prevent me from reaching an unbiased decision in who had been unacceptable to either side. As each name was the case. I, of course, responded “No.” read that juror was escorted out of the courtroom to return to the basement. Since this was our second day for jury duty, whoever Judge Melody then started the list of other witnesses that would was not chosen would be finished with their duties. In this case be testifying in the case. He started with the police officers. Up each side had 4 challenges. went my hand again and again. I knew them. Not biased. Next name. He then went through more names that were going to be I was the 8th peremptory challenge. called as witnesses. Up went my hand again and again. It wasn’t hard for anyone in the courtroom to see that I knew a lot of people. He then asked about the defendant. As it turned out, the defendant lived on the same street as me. I did not know him but I did raise my hand to let the judge know there might be a conflict. No problem, I can give an unbiased decision.

To my horror, and because I am slightly obsessive compulsive, I had started counting the number of possible witnesses that would be called during the trial. I stopped counting at 38 and my mind began to sweat, even though the courtroom was about 65 degrees.

All during the voir dire I figured that there might come a time when I would be stricken for cause. It never happened. My problem was that this was on a Tuesday and I was due in a trial starting the following Monday in the Delaware County Court of Common Pleas.

After going through the voir dire questions, Judge Melody asked the prospective jurors if anyone would have a hardship if they sat on that jury. For anyone who has ever tried a jury case, you know that with more than 38 witnesses and the possibility of direct and cross examination of that many people, it could take at least one or more weeks for the case to be tried. Up went my hand. “Yes, Mr. DeTulleo, what is your hardship?” asked Judge Melody. I briefly explained about the trial the following week and that I had counted at least 38 witnesses and anticipated that I would not be able to make the trial in Delaware County. He answered, “I am sure if you call them you will get a continuance.”

New Matter

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CCBA Feature

Legal Aid of Southeastern PA: What’s it all about?

By Christine Zaccarelli, Esquire Pro Bono Director, Legal Aid of Southeastern PA

I

f you are a member of the Chester County Bar Association there is no doubt you received a number of emails about the Annual Campaign for Legal Aid of Southeastern PA (LASP).

To those of you that responded to the call for help, thank you!

We are pleased to report that we reached our $50,000 fundraising goal, which means we will be receiving an additional $10,000 EACH from the CCBA and CCBF. Thank you!

hire private counsel. Simply put, they have a lawyer. When their landlord threatens to evict them, they can call their lawyer. When the mother of their children violates the custody order, they can call their lawyer. When…and the list goes on and on. Think about it…you work hard and struggle to provide for your family in a very wealthy suburban county but you know you always have a resource at Legal Aid; it’s pretty empowering.

WHAT does our client look like? That’s a tough one because they are all so different. Our clients could be: a single mom caring for young children who wants to file for bankruptcy after a divorce drained her finances, a single dad working full time who just wants We are extremely grateful for your support and realize that to see his children, an elderly married couple who want a power all of those emails may have been prompting some thoughts… of attorney or an unemployed professional who needs help with What exactly does Legal Aid really do? Why should I donate to an unemployment compensation claim. While all of our clients Legal Aid of Southeastern PA? I want my money to stay local! are unique in their personalities and circumstances they all share a common thread; without Legal Aid, our Pro Bono Program or Well, it’s funny you should ask! First, we are a four county Access to Justice, they would be facing their legal problems alone. agency and we provide free quality civil legal services to low income and senior residents of Delaware, Chester, Montgomery The clients are the easy answer to why you should and Bucks Counties. But, all money raised locally stays local so support LASP, but what’s the rest of the story? I had the your donation goes to the Chester County Division of LASP. chance to speak to Melanie McAteer, Chester County Family Court Administrator, about LASP. She said, “LASP, their pro WHAT exactly does that mean, “provide free quality bono program and the Access to Justice (ATJ) program provide civil legal services to low income and seniors”? To our service to the community and Court which is essential to the clients it means they have someone in their corner, someone efficient administration of justice.” Kinda sounds like a sound bite who’s looking out for their interests when they can’t afford to huh, so what does it mean? Well, recently the Honorable James P. MacElree called upon Ms. McAteer to enlist Legal Aid’s help in finding a pro bono attorney to provide assistance to a litigant in his courtroom who needed help navigating through family court. Keith Boggess, a local West Chester attorney, was up to the task and successfully litigated the client’s issues. Both Judge MacElree and Ms. McAteer were grateful both to Legal Aid and Mr. Boggess.

We’ve all been there. Dealing with a pro se litigant who understandably cannot navigate through the court system.

It makes everything about the case harder. Every LASP and ATJ client would be another pro se litigant without the availability of our services.

Again, if you have donated already to LASP, thank you!

If not, it’s not too late. Please help us jumpstart our 2015 Giving Campaign with a donation today! If you have any questions about our services or volunteer opportunities please contact me at czaccarelli@lasp.org or 610-436-4510.

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New Matter

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CCBA Feature

Elizabeth Fritsch, Don Kohler Grant to Legal Aid of SE Pennsylvania

ANNUAL MEETING

By Karyn L. Seace, Esquire

Don Kohler, Peggy Gusz Grant to The Crime Victims’ Center of Chester County

Rob Lukens, Laurie Rofini, Don Kohler Grant to The Chester County Historical Society

Don Kohler, Dolly Wideman-Scott Grant to The Domestic Violence Center of Chester County

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New Matter

O

n December 4, 2014, the Chester Count y Bar Association held its annual meeting at the historic courthouse in beautiful courtroom one, which has been reserved for such functions for the Chester County Bar Association. Donald Kohler emceed the event. Some of the highlights appear in here.

The minutes from last year’s meeting were read and approved, and the Treasurer’s and President’s reports were presented. Then we were all “wowed” by Kiera Judge who won the Swope’s Scholarship and donated it to the Domestic Violence Center of Chester County—because she already had a full scholarship! There were four grants presented as follows: Peggy Gusz accepted $5,000.00 on behalf of The Crime Victims’ Center of Chester County, Inc., Dolly Wideman-Scott accepted $5,000.00 on behalf of the Domestic Violence Center of Chester County, Liz Fritsch accepted a conditional $10,000.00 grant on behalf of Legal Aid of Southeastern Pennsylvania, and Robert Lukens and Laurie Rofini accepted $5,000.00 on behalf of the Chester County Historical Society, earmarked for the purpose of restoring the Passmore Williamson prison guest visitors’ book.

Al Massey spoke on the history of the law library and how it used to need separate funds but now that is not the case. He discussed a disbanding petition allowing for the transfer of the funds to the Chester County Bar Foundation. Wayne W. Congar, Anthony P. Peszka, and Michael F. Petock were lamented with Randy Schauer petitioning on behalf of Wayne W. Congar, Eric Trajtenberg petitioning on behalf of his Anthony P. Peszka, and Michael C. Petock petitioning for his late father. The best part of the whole meeting was a video that Wendy Leeper made showcasing George Zumbano’s ultimate dance moves! I’d like to end by saying that, “I’d cut a rug with him any day!”

CCBA Featured Member Profile

Nancy W. Pine

www.chescobar.org

Norman J. Pine

Who is the person you are most interested in meeting?

notable judicial decisions is by Judge Learned Hand—“There is no surer way to misread any document than to read it literally”—Giuseppe v. Walling (1944).

Willa Cather. She was the subject of my senior thesis in college and I would love to discuss her works with her.

Who is the person you are most interested in meeting?

What is the last book you read?

Neil deGrasse Tyson or Guy Consolmagno (living) and James Madison (dead).

All the Light We Cannot See, by Anthony Doerr

Where are you living now?

Where are you living now?

West Goshen Township, West Chester, PA

West Goshen Township, West Chester, PA

What was your first job?

What was your first job?

Lifeguard.

What word best describes you?

Practical.

Where would we find you on a Saturday afternoon?

Supervising the “Honey Do” list.

What is your favorite way to spend free time?

Family, friends & laughter.

I would not leave home without…

My smart phone.

What is your greatest extravagance?

Thunderbird convertible.

What is the honor of which you are most proud?

Mom to two great kids.

What is the most important lesson you’ve learned?

Proofread!

Mowing neighbors’ lawns.

What word best describes you?

What is your favorite TV show?

Open-minded.

Drama: Downton Abbey & How to Get Away with Murder Comedy: Modern Family

Where would we find you on a Saturday afternoon?

What has been your best, worst and toughest decision?

What is your favorite way to spend free time?

Best: To practice law with my husband.

Worst: To practice law with my husband.

Toughest: To practice law with my husband.

What do you like best about your job?

Helping clients with important life decisions and helping parties achieve resolution.

And the ability to bring our dog Frank to work.

Do you have any goals that have yet to be achieved?

Early retirement.

What is a little known fact about you?

I am afraid of squirrels.

“Honey Do” list.

Shopping for antiques with my wife.

I would not leave home without…

My smart phone.

What is your greatest extravagance?

Enjoying an occasional very fine cigar—I really do not consider myself to be extravagant however.

What is the honor of which you are most proud?

Being the father of two wonderful children and attaining the rank of Eagle Scout.

What is the most important lesson you’ve learned?

That any document is subject to more than one interpretation.

One of my favorite lines from

What is the last book you read?

The Way of Serenity,

by Jonathon Morris

What is your favorite TV show?

Drama: Downton Abbey Comedy: Modern Family

What has been your best, worst and toughest decision?

Best: Deciding to see the world and serve as a Naval Officer overseas and marrying my wife.

Worst: Recently paying for dog obedience lessons for a Corgi puppy.

Toughest: Many decisions made under pressure and during dangerous conditions at sea when lives were literally at risk.

What do you like best about your job?

Working with my wife and law partner, Nancy.

Do you have any goals that have yet to be achieved?

Achieving a deep and insightful understanding of the nature of the universe and our place in it.

What is a little known fact about you?

I worked on an archaeological dig site as a laborer in Yorkshire, England for a summer during college near the ruins of the Whitby Abbey and got paid 6 Pounds per week.

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CCBA Feature

LAWYERS GIVE BOOST

to Endangered Book

Posted by Kathleen Brady Shea on October 29th, 2014 Chester County Historical Society

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year after gaining distinction as the People’s Choice Award winner in a state endangered artifacts competition, a rare prison visitors’ book at the Chester County Historical Society (CCHS) has moved closer to ending its imperiled status.

CCHS said it has received a grant of $5,000 from the Chester County Bar Foundation for the restoration of Passmore Williamson’s 1855 prison visitors’ book.

The book is one of the most unusual and important items in the CCHS collection, documenting a pivotal time in Passmore Williamson’s life as well as U.S. history, said Rob Lukens, CCHS president.

ate in recovering two sons and their mother, Jane Johnson, an enslaved woman who sought and gained freedom in Pennsylvania with Williamson’s assistance.

Williamson spent 100 days in Philadelphia’s Moyamensing Prison before he was released, according to CCHS records.

While imprisoned, Williamson, whose case had generated considerable publicity, took the unusual step of keeping a visitors’ book. It named the more than 500 men, women and children who showed their support by visiting Williamson in jail—some from as far away as Canada and Ireland.

In 1855, Passmore Williamson, a Philadelphia businessman who was born in Westtown Township, chose to go to The book contains the signatures of prison rather than violate his principles. Frederick Douglass and hundreds of other He was imprisoned for failing to cooper- notable supporters, including Underground Railroad conductor Harriet Tubman; William Still, who later published a history of the Underground Railroad; and Mary Ann Shadd, the first African American woman to publish a newspaper in North America. Tucked in the back of the book is a letter conveying gratitude from Jane Johnson, who was then living safely in Massachusetts.

“CCHS is very grateful for this significant grant from the Chester County Bar Foundation,” said Lukens. “It speaks volumes about the Foundation’s mission that they are willing to support the preservation of this national treasure, which will inspire innumerable visitors and researchers for decades to come.”

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Don Kohler, president of the Chester County Bar Foundation, said the group was proud to contribute. “Preserving this book will insure that future generations are aware of how important Chester County was to the Abolitionist Movement,” he said.

Because the book’s binding must be restored and each page needs to be cleaned and treated, the conservation work is estimated to cost approximately $25,500. More than half of that amount has been raised from individual supporters and grants, a CCHS press release said.

Anyone who is interested in helping to preserve Williamson’s book is asked to contact David B. Reinfeld at 610-692-4800, ext. 267, dreinfeld@chestercohistorical. org, or make a donation online at http:// chestercohistorical.org/support-cchs.

Photo credit: Chester County Historical Society

CCBA Feature

www.chescobar.org

New Admittee Ceremony

By Shannon K. McDonald, Esquire

Adam Kraut and his father, Bill Kraut.

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n November 12, 2014, with the sun streaming in the windows of the Seventh Floor of the Courthouse, President Judge MacElree and Judges Cody, Shenkin, Sarcione, Strietel, Summer and Gavin all gathered to welcome an incoming group of bar members. This formal ceremony is the second to occur after the practice was picked back up again in Chester County. It allows some of our new practitioners to be greeted by the local judges in person, and be formally accepted to the bar in Pennsylvania and Chester County. Bill Wilson, Esquire, offered a few opening remarks, his helpful advice included using that law license and the CCBA to feed one’s family. He could have added that does not include bringing home the cookies which are so

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Bill Scott and his daughter, Rose Scott.

often plentifully available at these sort of events—perhaps the admittees knew that already?

President Judge MacElree followed Mr. Wilson’s words of wisdom with a few of his own. He congratulated the young people on their achievement, but warned that the work was far from over. He stated that the key is to be prepared, not just for exams, but now for the exams which would be held in the courtroom.

Judge MacElree declined to offer a full trial practicum (which the author certainly would have attended!), but did offer the advice to read the rules once a year. This practice would prevent confusion as new rules are promulgated, and refreshes one’s recollection over those rules which have not changed. Beyond that though, he merely gave small warning that the admittees should all be prepared for their case: they should have a theory of the case, based in the constitution, the statutes, or some case law. His final remarks were to protect the integrity of themselves and their practice, that once that has been questioned or compromised, it may never be recovered.

The admittees lined the front of the court room with their sponsors, ten admittees in all. Doing my best to catch their names, the Chester County Bar Association and New Matter welcome: Ravi Marphatia, Adam Kraut, Jennifer Johnson, Alexander Trunzo, Brian Doyle, Thomas Ferrant, Ashley McGarrity, Rose Scott, Adam Stnaky, and Mary Kate Skinatelli. Although they all stated they have certain areas they want to practice in, I suspect, like many of their new peers, they will work where the money is, and I’m sure they’ll take Judge MacElree’s advice to heart.

Finally though, Judge Shenkin addressed those fresh young faces, and read a quote about candor and honesty in the profession from Pennsylvania Supreme Court Justice John Bannister Gibson. He re-emphasized the importance of candor and honesty, and the trouble failing to keep those qualities in mind can land a lawyer in. A reception followed in which the new members of the Pennsylvania Bar were able to mingle with some of the Chester County Judges, the lawyers in attendance, and hear more about the profession and the benefits of the Chester County Bar Association.

New Matter

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5 1 20

r e n n i D s ’ t n e d i s Pre on d H m s e 15 (D 0 2 , h y 9t Januar

o te l )

Jim Sargent, Hon. Jacqueline Cody, Paul Cody, Tony Morris

Jean Speiser—The Hon. Juan R. Sanchez Pro Bono Award (presented by Chris Zaccarelli & Craig Styer)

Stacy Fuller, Patrick McKenna, Lisa Comber Hall

Andrea Pettine, Deni Morton, Bob Adams

Bob Adams—2014 Service Award (presented by Lisa Comber Hall)

Al Massey—2014 President’s Award (presented by Lisa Comber Hall)

Craig Styer, Elizabeth Fritsch

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Mike Morton, Nancy Glidden, Al Massey

Lisa Comber Hall, Craig Styer

George Zumbano, Hon. Juan R. Sanchez, Joel Frank Marta Laynas, Joanne Peskoff

Craig and Michele Styer, Dwight and Wendy Leeper

Anthony Verwey—2014 Service Award (presented by Chris Zaccarelli)

Dave Patten, Al Massey—CCBA 50 Year Members Lisa Comber Hall, Judge Shenkin

Richard Lipow—2014 Access to Justice Award (presented by John McKenna)

Don Kohler—2014 Board of Directors Award (presented by Lisa Comber Hall) 2014 Board of Directors

John Fiorillo A.J. Ober, Don Kohler, Eric Tratjenberg, Chris Zaccarelli

Lisa Comber Hall, Senator Dinniman New Matter

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CCBA Feature

Bar Sail A T T I T U D E way we survive them is to realize, it’s just part of the adventure of practicing law, the adventure of life.

By Marc J. Lieberman, Esquire

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tanding in front of me was Judge Wheatcraft saying,” You can’t come in here!” I fully understood why. I just was surprised she wouldn’t let me in.

My wife Diane laughed at me, took off her coat, and went into where it was nice and dry. I stood out in the rain, drink in hand.

As an attorney, I realize I just can’t let some stuff get to me. Bob Bitchin, (yes, that’s his real name), a publisher of a popular sailing magazine, is quoted as saying, “The difference between an ordeal and an adventure, is attitude.” As a criminal defense attorney, I try to keep with the adventure attitude. Like the time my client’s significant other told me he dropped off my client at a bar in West Chester. He didn’t know which one and it was the morning she was supposed to plead guilty to a DUI. I had to bar hop most of the morning until I found her.

Luckily the Judge was no longer on the bench; my client went home and came back the next day in a sober condition. I was able to convince her that such behavior was a sure sign of addiction and she finally took getting help seriously.

Another time I had questions about a client’s mental stability. He would not plead guilty but did not want to take the case to trial. While entering the courthouse he said some things to a female deputy sheriff that I really can’t repeat in this publication. The deputy turned bright red and I thought, I’m supposed to go in front of Judge Sanchez with this? Thank the courts for inventing stipulated fact trials. We all have stories like this. The

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since I was a kid. That day, I just didn’t care and no one else on Bar Sail seemed to care either. Diane and I just started going boat to boat asking how their sail My attitude has made all these situa- was and talking Bar Sail talk. tions adventures but occasionally it takes hindsight that makes ordeals into advenBy the time we reached Judge tures. When on Bar Sail, it’s always an Wheatcraft’s boat I wouldn’t have been adventure. No hindsight needed. Bar Sail much wetter if I jumped in the Severn 2014 started on a rainy morning. It wasn’t River. We climbed into the aft cockpit of storming, just those summer showers that the boat to join the party. The door was were rolling through. Looking at our open to the salon of the boat. That’s where smart phones, my crew and I were trying Judge Wheatcraft met us. See, the inside to find a weather window to sail from of her boat where a large party was going Rock Hall, Maryland to Annapolis. No on, was dry. At that point I was nothing luck, we were going to get wet no matter but a giant wet dog. You know the kind, when we left. The boat was actually made with lots of thick hair that carries gallons to get wet, so at 11:00 we dropped our of water. It’s not like I was going to shake dock lines and motored out of the slip. It off or something. I was politely told I wasn’t raining that hard so I didn’t put on should go up the steps to the fly bridge. my rain coat; it was a warm rain.

There is seating up there and it was made to get wet. Diane took her coat off and I planned on motoring most of the way entered the salon. I, the banished wet dog, because of the rain. The boat motored at went up the steps only to find a bunch of around 6 knots or about 7 mph, not very other wet dogs and a cooler full of drinks fast. When we got out of Swan Creek to play with. and into the bay we found the rain light and the wind coming from the direction Later, I went back to the boat my crew that would make an easy sail to Annapolis. and I chartered. I wanted to clean up for We decided to hoist the sails and turn off dinner. I dried off, changed clothes and the motor. The boat seemed to like this eventually went back to Judge Wheatcraft’s and returned the favor by accelerating boat. No longer being a wet dog I was able to 9 knots. This may not seem that fast to join the party. The inside was more like a but the only thing moving the boat was home than a boat. I understand the desire a little wind. The boat was longer than to keep the wet dogs out. a school bus, weighed much more than one, and cost more than my house and As usual the Bar Association staff was fast enough to make a roaring wake outdid themselves. The crabs and food that made my father whoop and holler were great, the weather cleared out and like an excited kid. The two of us carried we had a great night and better sail back. on like this while most of the crew went At Bar Sail, a little rain won’t stop us from below where it was dry. The rain let up and enjoying ourselves. On Bar Sail, it’s usually we made it to Annapolis in record time. hot and sunny, but the weather doesn’t matter. It’s all about the attitude.

We docked the boat and that’s when the rain came a little heavier. I still didn’t This year’s Bar Sail will be June 11–12 put on a rain coat. Why put on a coat? I and we’re headed to St. Michael’s—we hadn’t walked around in the rain like this hope you can join us!

CCBA Feature

www.chescobar.org

Hot Topics in Criminal Appeals: Persuasive New Case Law for Pennsylvania Practitioners

By Shannon K. McDonald, Esquire

small quantities, he took into account the conduct which had led to the conspiracy charge—the conduct of which the men were actually acquitted. Jones, et al., received sentences of 180–225 months based on this more serious conduct, despite the sentencing guidelines of 33–71 months.

The Supreme Court has stated it wants to address this issue, and has touched on it in cases like Allyene and Apprendi, finding he United States Supreme Court that a judge may not utilize aggravating has turned down an important factors not found by the jury to increase issue in Sixth Amendment juris- sentences. However, the Supreme Court prudence, again. In an unusual pairing, has turned down this issue, despite the Justices Scalia, Thomas and Ginsburg judge not only applying factors the jury did dissented from the denial of certiorari not find the men guilty of, but applying of Jones v. United States. The denial of aggravating factors which the jury actually cert contained no reasoning from the six acquitted the men. The Court, Scalia conjustices who joined it, and Justice Kagan cluded, should have granted review, either did not participate. The case focuses on to “put an end to the unbroken string of a sentencing issue which we see here in cases disregarding the Sixth Amendment,” Pennsylvania, but this one dealt specifically or else go ahead and eliminate the “Sixth Amendment difficulty by acknowledging with a Washington, D.C. case. that all sentences below the statutory After a jury trial, Jones and two compa- maximum are substantively reasonable.” triots were acquitted of conspiracy to sell In other criminal law appeals, the Fourth large quantities of drugs in Washington, D.C., but were found guilty of each selling Amendment and jury instructions containsmall quantities. When the judge sen- ing “must” have been examined. The Tenth tenced each of the men for the sale of the Circuit just released an opinion in United

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States v. Denson. Mr. Denson was found inside a home with a cache of guns he was not permitted to own by virtue of his felon status. Mr. Denson was found through use of a radar detector which police used to determine a person was present in a home, and the police determined that home was Denson’s (who they were looking for due to active warrants) through an electric bill in his name at that address. Arguing that the radar was an illegal search, Denson plead guilty to the possession of firearms, but appealed the question of the search to the Tenth Circuit. The court, however, determined that it did not need to address the legality of the radar device, even excluding it, because there were sufficient other factors to indicate the police had probable cause to believe that Mr. Denson was in the home which had the electric bill in his name.

And finally, in an interesting development in Kansas, the State Supreme Court has found that for a jury instruction to use “will” in charging the jury with finding of guilt, it obstructs the jury’s powers and the instructions cannot be used if they appear to compel the jury to find a verdict on behalf of the state. In State v. Smith-Parker, a man was found guilty by a jury of both felony murder and first degree murder (2 separate killings, one week apart, jointly tried). The court describes that instructions which tell the jury they “should” or “must” or “will” find a person guilty, even when mitigating clauses appear at the end of the instruction, is too likely to compel a jury to convict. As an interesting take on the issue of compelling a jury to find a verdict of guilty, the court states that the instruction may not appear to forbid the jury from exercising its power of nullification. “Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.”

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CCBA Feature

the impact. This is more than discipline; discipline gets you to the office, focus gets the job done.

Versatility is the ability to switch seamlessly from one to another task or endeavor.

One of the pros of being a solo practitioner is the ability to adapt quickly to client demands, market demands, and economic passion. As Randy Komisar explained in demands. We all dream of a narrow niche the Monk and the Riddle: The Education of market, where we can focus on that one a Silicon Valley Entrepreneur, “Passion pulls area of arcane legal knowledge, but in the you toward something you cannot resist. end, your clients are going to want you Drive pushes you toward something you to be able to help them with everything, and you aren’t going to always want to feel compelled or obligated to do.”

By Shannon K. McDonald & send the work elsewhere. And it isn’t just Mary LaSota, Esquires clients, you need to respond to market demands and economic demands or lack Discipline is the motivated attitude of thereof. When the world goes on vacation reaming of going solo? Ever self-control needed in an entrepreneurial every July and your business slows down, thought of what it takes to set environment. You need to show up on time, how will you adapt so that your business up your own business? Whether ready to work. There is no boss hovering hits its target that month? What will you you like it or not, the practice of law is a over your shoulder asking when the brief change? Before long, versatility becomes business. Do not get so wrapped up in will be written, the complaint filed, the a mindset and change becomes the norm. honing your legal skills that you forget billable hours met, and the client phone that you are also an entrepreneur running a calls returned. The ability to get things business. Solo practice requires a great deal done and done right the first time needs Business Acumen is a thorough underof ambition, risk tolerance, discipline, and to become intrinsically ingrained in your standing of what drives profitability and psyche.

You need structure to complete the business sense. Here are eight attributes we cash flow, a market focused approach to daily tasks and structure to implement your believe are needed to fly solo. business plan. Discipline requires you to your practice, and an overall big picture get yourself up, put on your business pants, understanding of your practice and its and go to work, not go take a nap—at least interrelationships. Don’t be tempted to Passion tops our list. We believe you at first. Without the discipline to do the take shortcuts with services. The temptaneed passion for the law and passion to run job because you tell yourself to do the job, tion to take shortcuts can be irresistible if a business. A passion for both is required you aren’t going to succeed, no matter how your practice is not profitable. Failure to because being a sole practitioner is hard many clients you have. make a profit rarely has anything to do work. Not only are you the only attorney with legal skills—it has to do with a lack in your firm, but you are also your business’ of business-related skills, such as implemarketing guru, its accountant, its tech menting sound planning and budgeting wizard, and its back office support. Don’t Focus, focus, focus. If you cannot focus procedures, realistic pricing of services, like balancing the books? Despise market- effectively, you cannot think effectively. good billing and collection practices, and ing? Believe you are above the mundane Without focus you will not be productive keeping expenses in line. Learn as quickly task of typing your own envelopes? Then in either your practice or in your business. as possible business-related skills that will don’t bother thinking about going solo. As Each of us has a limited amount of energy benefit your practice. a sole practitioner you wear all of the hats. on any given day. Each day you can use Without passion you won’t get through that energy and apply it to many different the daily grind and your practice will likely things and a have a limited affect. But what not grow. Passion propels you out of bed if you narrowed your focus on a limited A Sense of Humor is more necessary in the early a.m. to write an article and number of important things? You would than you can imagine—unless you’re keeps you up late at night working on your have a greater impact. What if you applied already a solo. As a solo you’re going to business website. Don’t mistake drive for this mentality to your practice? Imagine Continued on page 23

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www.chescobar.org Continued from page 22 have less vacation, fewer mornings off, and less early afternoons. You will find yourself working long hours and trudging along.

The only way to avoid the burnout is to keep that sense of humor. Find a building where other solo practitioners work and create a community of support. Not only is it nice to have others to bounce ideas off, but when you get the phone call that makes you want to scream, having someone to tell it to with a humorous twist is going to make you feel a lot better.

Multitasking is an overused word of understated importance in the solo’s office.

You’ll need to be able to keep track of your emails, your phone calls, and your client appointments, as well as your due dates, your court dates, your tax prepayment due date, and your dates with your spouse. It’s a lot to put on any to do list, but it is even harder to cross it all off before the end of the day.

Being able to switch from task to task, and being able to follow more than one train of thought are learned skills, and cannot be ignored in the sole practitioner’s world.

A grasp on technology cannot be ignored in the current solo world. There are so many money saving options out there, if you know how to use the technology.

You can cut your bottom line, cut out your IT professional, and increase your profit. Now I’m not talking about the virtual office—that doesn’t work for most attorneys. Instead, how about the internet fax, which sends all your faxes to you as an email? How about an internet based phone service? How about a desktop scanner so that your files are all contained in your laptop or on the cloud and you are not the guy lugging home 60 pounds of guilt in an oversized briefcase? There are so many time keeping devices which will sync with phone numbers and ease your billing issues, as well as sync with your IOLTA and checking account to smooth the monthly billing hassles. Technology is not to be sniffed at: even the oldest solo understands that a faster, less expensive,

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Being a solo practitioner is rewarding, challenging, and exhilarating, but it can also be lonely and overwhelming. Flying Solo is a column written by solo practitioners offering insight on best business practices, marketing tips, networking options, and tech advice for those individuals who have chosen to fly solo. Have an idea or question for our next column? Email us.

Shannon K. McDonald is an appeals and defense attorney. She has been flying solo since December 2011. She can be reached at shannonk@mcdonalddefense.com.

Mary R. LaSota is a solo practitioner focusing on estate planning and administration, tax, and business planning. Mary took her practice solo in October 2013. She can be reached at mlasota@lasotalawllc.com.

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CCBA Feature

CHESTER COUNTY

TRIAL PRACTICE SUGGESTIONS from a Chester County Judge

By Hon. John L. Hall

In furtherance of our local practice, I have compiled the attached trial advocacy suggestions, intended largely for less experienced Chester County litigators. They coalesced over time as I readied hester County trial practice extends back to a time my previous New Matter article regarding trial advice provided when West Chester did not exist, before the American by former Chester County President Judge John E. Stively, Jr. Revolution, prior to the birth of the Nation’s founders. As such, the following are intended to supplement, rather than It reaches through generations of lawyers to the seventeenth duplicate, Judge Stively’s insights. century “shire-town” of Chester, when present day Chester and Delaware counties were combined as one of the three original I cannot claim any of these points as original. They have been Pennsylvania counties. Today, we Chester County attorneys and distilled from over thirty years of experience as a Chester County jurists stand immutably connected to those predecessors. It is now trial attorney and common pleas judge. In part, they were gleaned for us, through our individual professional interrelationships and from presenters of countless trial advocacy courses, authors of endeavors, to ensure that current Chester County practice honors trial techniques publications and past mentors, including noted our tradition—especially our tradition of civility. As described by Chester County attorneys, John J. Crane and John S. Halsted. A former Common Pleas Judge Robert S. Gawthrop, III, whose few suggestions directly resulted from a three day trial advocacy father, grandfather and uncle all were Chester County lawyers, and course presented in 1984 to me, and five other fortunate young the latter two jurists, “The Bar has long been justifiably proud of prosecutors, by then Philadelphia Deputy District Attorney, and its customs and traditions, its professional courtesies.” Boughton v. Boughton, 28 Ches.Co.Rep. 489, 492 (1980).

Continued on page 25

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www.chescobar.org Continued from page 24 now former Pennsylvania Supreme Court Chief Justice, Ronald D. Castille. I sincerely hope that at least some of our younger Chester County attorneys find them helpful:

Pre-trial

1. Try to be genuinely invested in your case. If you are, your passion will be persuasive. If you are not, try to settle.

2. Always try to visit the scene of the crime or incident before trial. You will not fully understand the case unless you do.

3. Work on your case and imagine how you will present it well before the trial. Allow the facts, trial tactics and evidentiary issues to percolate in the back of your mind. New and better methods of presenting your case may occur to you.

4. Before you begin the trial, develop a theme for your case which concisely defines for the jury why your case has the most merit.

You can refer to this theme in your opening statement and closing argument.

Trial

1. Dress appropriately for court. You should assume that the attorney wearing polyester, or the like, has the burden of proof.

2. Try never to be late or absent from a scheduled court appearance. Plan on enough time for unusual traffic and parking delays. Also plan on enough time to use the bathroom facilities, place your materials on counsel table and pre-mark your exhibits before the case begins. When the judge enters the courtroom, be ready to proceed.

3. Unless the judge advises you differently, in Chester County you can assume that the party with the ultimate burden of proof, e.g. the prosecution or the plaintiff, sits behind the counsel table closest to the jury box.

4. During the presentation of your case-in-chief, try to have enough witnesses to fill the entire day if your case will not finish that day. If you anticipate that a trial witness(es) will be unavailable and that your available witnesses may not fill up the day, discuss that circumstance with the judge and opposing counsel as soon as possible.

5. You will serve your client best if you take all reasonable steps to resolve the case short of trial. Sometimes that is impossible, 5. Try to show each witness the courtroom before his/her testimony and where the witness is to testify to give the witness but many times an unfavorable result could have been avoided a greater level of comfort. by creative and amicable negotiations. If you and opposing counsel think the case might be resolved except for a “sticking point,” try speaking with the judge about it in a manner 6. In a non-jury trial especially, try to accommodate the early prewhich won’t result in his/her recusal. The judge may think of sentation of an opposing witness if opposing counsel indicates a helpful suggestion to resolve the impasse. that the witness cannot otherwise reasonably be scheduled.

6. Discuss important trial ideas/issues with a respected colleague. 7. Give your opening statement like you are telling a story. Make it flow; make it interesting but don’t overreach. If you tell the 7. Take the time to thoroughly prepare each witness you will call jury certain evidence will be presented, make sure you present on direct examination. Discuss with each witness the questions it or your credibility and case may be damaged. As opposing you will ask and what questions may be asked on cross. counsel, listen for such gaps in your opponent’s opening and remind the jury about them in your closing.

8. When preparing a key witness whom the opposing party may attempt to show is lying, emphasize with that witness that the 8. Do not try the case in a manner which causes the jury to think “bottom line” is that they tell the truth. Apart from further you are attempting to distract or manipulate them, e.g. don’t ensuring you about the accuracy of your facts, sometimes on jingle your change, rustle your papers or type loudly on a laptop cross examination the opposing lawyer may stumble into computer while someone is testifying, thinking or speaking. that response if he/she asks what the witness was advised to testify about. Opposing counsel may also open the door to 9. Don’t allow your client to speak with you as you listen to the testimony. You may be distracted at an important moment. your questions on re-direct examination about the bottom line.

Give your client a pad of paper to write his/her questions 9. For critical evidentiary decisions that you foresee may arise and comments. Before ending the examination, take a few at trial and that you can’t afford to have the judge get wrong, moments to read what your client has written and confer with use a pre-trial motion in limine to explain to the court why him/her. If you ask for the court’s indulgence briefly to do so, the evidence is or is not admissible. you rarely will be denied.

10. Prepare the majority of your closing before the case begins.

10. Keep your eyes and ears open during trial, and occasionally on the judge and jury to monitor how they appear to be 11. Consider practicing your opening statements and closing arreceiving the evidence. guments, or at least key parts of them, out loud before the trial.

Continued on page 26 New Matter

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CCBA Feature Continued from page 25 11. During the trial, keep a separate legal pad for possible appeal issues. The deadline for filing a concise statement of errors complained of on appeal may come sooner than you have time to acquire and digest the trial transcript. The appeal issues you note during trial will help you remember them and where in the record you’ll find the relevant testimony. (Of course in my courtroom, you need not worry about such things.)

12. Bring out evidence which is harmful to your case up front and before the other side uses it. Take the sting out of it as much as you can. Don’t let the jury think you’re trying to hide it.

14. If your direct witness’ testimony is damaged by cross examination questions, use re-direct examination to rehabilitate the witness and fully explain any answer that resulted in a yes or no, but which needs an explanation to put the answer in context.

15. If a favorable witness describes a distance by using a courtroom marker, e.g. from here to the table, or with his/her hands, stop and ask counsel if they would agree that the description may be reduced to an approximate number of inches, feet or yards, and place the agreed distance on the record. Remember that the trial record must be intelligible for the appellate court.

13. Learn to ask non-leading questions on direct examination. 16. Think about saving a witness who could offer cumulative testimony or who might directly refute expected testimony from If an objection is sustained to a leading question you asked the opposing party, for rebuttal rather than using that person on direct, know how to get the information in a non-leading in your case-in-chief. There’s a risk the judge might not allow manner. Try “what, if anything,” “who, if anyone,” “when, if the rebuttal evidence, or the occasion for rebuttal never arises, at any time,” “how, if in any way,” or “where, if anywhere,” at but when it is used, rebuttal testimony may be last evidence the beginning of the question if you have trouble forming a the jury hears and can be very damaging to your opponent. non-leading question. For example, instead of asking, “Did he tell you the sky was blue?” Try, “What, if anything, did he tell you about the sky being blue?”

Continued on page 27

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New Matter

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www.chescobar.org Continued from page 26

General

17. Plan your cross examination. Consider how to attack expected testimony and what essential points you want to make. Listen to the answers, however, and adapt your cross as necessary.

1. If you give your word to opposing counsel, your client or the judge, always keep it. Each trial will build your reputation—for good or bad.

18. During cross examination, try not to allow the witness to ignore a leading yes/no question by providing an unresponsive answer. If necessary, ask the judge to direct the witness to respond only to the questions asked.

2. Know the Pennsylvania Code of Civility and Rules of Professional Responsibility and always apply them. If you are willing to violate either or both of them to win your case, you should consider another line of work.

19. If a witness on cross examination provides an answer which is unresponsive or beyond the scope of the question, consider asking the judge to strike the testimony and to instruct the jury not to consider it.

3. Know the local court rules of procedure. In Chester County, know and use the Standard Operating Procedures of the Chester County Court of Common Pleas which, in 2011, were adopted for use in all courtrooms except one. (The SOP are contained near the front of the Chester County Court Rules publication.)

20. Try to build to a crescendo during cross examination. End it with an answer that’s good for your case, not on something insignificant. If you get a great answer unexpectedly, consider ending cross there.

4. Maintain a sense of humor. Among countless other reasons, it will help you maintain a cordial relationship with opposing counsel and recover from a tough day in court. The humorless, sanctimonious attorney is rarely favored by anyone, including the jury.

21. If an opposing witness gives an answer which clearly indicates an obvious lie, ask the witness if he’s as sure about that as he/ she is about all his/her other testimony. If the witness says yes, and you are able to prove the witness was lying about that, 5. If you are working for private pay, don’t allow your anticipated you’ve just destroyed the witness’ testimony. If the witness says compensation to materially reduce your effort. If you lose, no, you’ve at least damaged his/her testimony. you do not want to wonder if a little more work would have made the difference.

22. Don’t let an opposing witness get away with presenting a lie to the jury. If you can rebut the lie with evidence, do it.

6. In your spare time, come to court to watch good attorneys present their cases. Take the time especially to listen to good 23. Prepare yourself and your client for a trial loss. Consider and cross examination, openings and closings. discuss what you will do if an adverse decision is rendered.

Deadlines under the Rules of Appellate Procedure especially 7. Try not to mimic good attorneys. Learn from them, but rely are difficult for an appellant. Try to consider appeal related on your own personality to develop your style of trial advocacy. questions, e.g. cost, issues, who will handle appeal, etc., before 8. Work on fully understanding evidence law and the Pennsylvania the end of the trial.

Rules of Evidence your entire career as a litigator. No other 24. During your closing argument, refrain from expressing your area of law requires split second decisions, which can make personal opinion about the evidence or verdict. Instead of or break your case. Especially learn the individual Rules and using, “In my opinion…” or “I think…”, use “I suggest…”, law which pertain to common objections like hearsay.

“The evidence shows…” or the like.

9. If you lose your case, be gracious to the winner—then appeal 25. Consider breaking your closing argument into five parts: 1) if necessary. If you win your case, be gracious to the loser. If use a short introduction to get the jury’s attention and focus you mumble something like “justice was done” while the sting them on the main issue(s); 2) chronologically explain your of defeat is fresh, the losing attorney may never forget it, or evidence and the significant portions of each witness’ testiyou in that context. And remember, you may be the loser mony; argue why your facts should be deemed credible (this after an appeal. should be the longest portion of your argument); 3) rebut the opposing argument; 4) explain why the credible facts 10. If you practice long enough, you will experience the loss of a case which you are certain resulted in a miscarriage of justice. and the applicable law require the verdict you advocate; use Such a result probably will occur from a misapplication of anticipated key language from the judge’s charge to explain the the law or a misunderstanding of the credible facts by the law; and 5) give a short final summation which compellingly and powerfully advocates for a favorable verdict. (Memorize jury, judge or appellate court. Try to practice in a way that never results in such an outcome occurring from something the final words to ensure that you’ll end well and know when you did or did not do. to sit down.)

New Matter

| 27

From The Bench

Communicating with the Judge

TOYS FOR TOTS THANK YOU

By Jamie W. Goncharoff, Esquire

The faces of many Chester County children will be much brighter this holiday season, thanks to the generous support of many Bar Association members.

For the 24th year in a row, the response to the Bar Association’s participation in the U.S. Marine Corps Reserve Toys for Tots program was outstanding.

K-Mart provided the toys at a 10% discount, the Marine Corps League provided volunteers to sell the toys prior to the annual meeting on December 4, 2014, and our members purchased and donated all of the toys!

The holiday season is a time to celebrate and share happiness with those who are less fortunate; fortunately, the generosity of our members certainly brightened the faces of many children throughout Chester County.

Thank you for caring.

When, Why & How?

By Hon. Mark L. Tunnell

A

re there any guidelines about this topic? The answer is yes. We start by referring to the Standard Operating Procedures of the Chester County Court of Common Pleas. These may be found in the Chester County Court Rules book and are also available online at the County’s website (www.chesco.org/ Documentcenter/view/3106). In pertinent part it says: Counsel should contact the appropriate administrative office concerning procedural questions or filings, and counsel should ensure complete research into any question raised before contacting any office. Specific questions about pre-trial filings, including motions, petitions and applications, may be addressed with the pre-trial clerks (the judge’s clerk is not a pre-trial clerk). It is assumed that you will have familiarized yourself with Pennsylvania and local rules before making any such communication. Scheduling questions should be directed to the Court Administrator’s Office, unless special circumstances require that contact be made with the judge’s secretary.

Adherence to these precepts might eliminate 95% of telephone calls and correspondence addressed to the judge. In another place it is provided: Do not copy the judge on correspondence between counsel. If there is a discovery dispute, the judge will only entertain a formal motion.

The same would be true for copies of letters between counsel castigating each other.

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Matter

Worse yet are letters addressed directly to the judge castigating the opposing party or counsel for a real or imagined departure from some prior understanding. These missives inspire, of course, reply letters from the adversaries countering any such assertions. Most courtesy copies are oxymoronic; there is nothing courteous about them, and the court does not want to be copied on them. Counsel in such instances may expect a sharp rebuke from the court.

If it is something of any importance, the court will entertain a formal motion.

Worst of all is the uninvited letter to the court that deals with the merits of the matter and typically advocates some position. Even if the adversary is copied, these letters are nothing less than improper ex parte communications to the court, and could expose the writer to disciplinary action for violating Rule of Professional Conduct 3.5(b). An attorney fares no better by writing such letters to the judge’s clerk. Any unsolicited correspondence or telephone calls to a judge’s clerk are tantamount to correspondence or telephone calls to the judge. Counsel should reflect before initiating such communications.

Of course each individual judge has his or her own preferences, which are not really difficult to discover. For example when concluding administrative conferences, I will often advise counsel that if they hit some snag they might be able to resolve without filing a motion, they can feel free to contact my secretary, advise her of the nature of the problem, and if appropriate I will schedule a time for a joint telephone conference. Not all judges may offer this informality, in which case the foregoing precepts should be followed.

YLD Details

www.chescobar.org

YL D Happy Hour

at Side Bar & Restaurant

By Brian J. Doyle, Esquire

A

crowd of spirited Chester County attorneys gathered at the Side Bar and Restaurant for the Young Lawyer’s Division Happy Hour on Thursday, December 18. The event began at 5:00 p.m., and throughout the evening the assembly swelled from twenty to forty attendees from all bar association sections and representing many firms and local organizations.

The gathering spilled across more than half of the room as wait staff served refreshments, including chicken wings, crudités, and miniature pizzas with the compliments of our sponsors, Heritage Land Transfer Company, Inc. and the

Peter Hart, Chris Zaccarelli, Chuck DeTulleo

Bill McCormick Team of realtors. In the midst of conversations and storytelling, a group of brass band musicians clad in Santa suits erupted into the Side Bar to raise donations for Safe Harbor charity, to which our members generously contributed.

YLD Chair A.J. Ober greeted guests as they arrived at the Side Bar. Also attending were YLD Chair-Elect Basel Frens, Vice Chair Colleen Frens, and Vice President and Treasure P.J. Gallo. Bar Association President-Elect Bill Wilson entered his appearance, as well as past presidents, Andrea Pettine and Kim Denise Morton.

Spotted among the group were the familiar faces of Charles DeTulleo and Eric

Shannon McDonald, Brian Doyle

Trajtenberg. The YLD was also pleased to welcome members from the Office of the Public Defender.

On behalf of the Young Lawyers’ Division, Chair A.J. Ober thanks all who attended and hopes for another great turnout to the next.

Thinning the Herd

By Kevin J. Ryan

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Unbeknownst to the detective there is a serial murderer afoot who is a true predator and is both clever and brutal in his attacks. Four murders go unsolved. The murderer matches wits with the detective, local and state police and the medical examiner taunting them with brazen behavior.

As Spagnola believes he is closing in on his perpetrator he is injured when an SUV, laying in wait for him, crashes into his car on his way home from work side lining him from the pursuit. Is the Predator done, or has it just begun?

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New Matter

| 29

The Blank Page

How is Your

Health?

By Mark Blank, Jr., Esquire

N

o, this is not a medical journal; it is New Matter. Maybe you do not think that your health is important, but it probably is. So if you are interested, read on. And if you finish this article, you will see why I have placed it in a lawyer’s journal.

Do you exercise regularly? Keep in mind, Homo Sapiens is not, by nature, a sedentary animal (or mammal, as the case may be). Twenty thousand years ago we built our own homesteads, and spent the days hunting and gathering. Today, exercise is necessary, and it is good for our hearts, our muscles, bones, circulation and blood pressure.

Now let us turn to weight. If you do not believe me that there is a lot of overweight and obesity in western society, particularly in the U.S., all you have to do is look around. Overweight negatively affects our hearts, circulation, arteries and other bodily functions. According to the American Heart Association, it is a tremendous risk for heart disease. Are you overweight? In determining this, the starting point is the Body Mass Index (BMI). In accordance with literature published by the Mayo Clinic, twenty-four point nine (24.9) or under is considered to be a normal weight;

30 | N e w

Matter

over that point is overweight, and thirty point zero (30.00) BMI is deemed to be obese. Although there are other factors that are involved (such as percentage of muscle, size of your body frame and your age), your BMI is at least a starting point.

Recent studies have also concluded that exercising regularly and maintaining a healthy weight can reduce the risk of cancer.

Now let us turn to diet. According to the American Institute for Cancer Research (AICR), a healthy diet reduces the risk of cancer. Similarly, it mitigates the risks of heart problems. My former physician (he’s now retired) advised me that the best diet is greens, greens and greens, with some poultry and fish. AICR tells us that Continued on page 31

www.chescobar.org

Continued from page 30 a diet that is rich in fresh vegetables and high fiber foods reduces the risk of cancer.

It recommends five (5) servings (½ cup is a serving) each day of vegetables, fruits, legumes, nuts and seeds, and whole grains.

As for fish, most fish contain Omega-3, which has been proven to aid in reducing the risks of cancer and heart disease. Both the American Heart Association and the American Institute for Cancer Research recommend keeping at a minimum meat, particularly red meat, and meat which has been processed.

In sum, diet, exercise and a healthy weight are all great, but don’t ignore blood pressure. Ideally, it should be 120/75. However, cardiologists recently have become more generous.

Nevertheless, blood pressure, at the very least, should be 140/90 or below.

Now, what about tobacco? According to my (once again former) doctor, smoking is the leading cause of all cancers; not just lung cancer, but prostate cancer, breast cancer, colon cancer, etc. It has also been determined to be a cause of heart disease and lung disease. Every health organization in the world says: if you smoke, quit; if you do not, don’t start.

Alcohol is a bit different, and perhaps controversial.

According to the literature that the writer has perused, one should consume no more than three ounces of hard liquor each day (not quite enough for a martini) or six ounces of wine. Medical studies have produced different results as to the benefits of alcohol; however, moderate consumption of alcohol can be good for one’s heart, blood circulation as well as having other health benefits. Moderation seems to be the key. It appears to be agreed

upon that alcohol, if used as a tranquilizer, is dangerous to one’s physical as well as mental health. Moreover (again, according to my former guru), alcohol can cause high blood pressure.

Now, why did I write this article?

Probably for the same reason that you have read it. As lawyers, we are so wrapped up in what we are doing that we tend to ignore our health. The stress of the practice of law can lead to poor health habits. I admit that, in the past, maybe I have been lax about my own health. However, I am happy to say that the last time that I visited my doctor (about a month ago from this writing), I was told that I am in good health. But not the same for all lawyers. What to do?

Be careful, and get a complete physical examination every year. If you have not figured it out by now, the law is a jealous mistress (at the time that this phrase was coined, there were no lady lawyers). But you should not be overwhelmed to such an extent that you ignore your health.

New Matter

| 31

Tech Tips

Highlights of the Disciplinary Board’s

New Ethics Opinion on Social Media

By Keith E. Boggess, Esquire

T

he Disciplinary Board of Pennsylvania recently released Formal Opinion 2014-300, which now gives attorneys some guidance on Social Media usage. I have written about social media as it related to the practice of law in prior issues, especially in the areas of marketing and of evidence. I believe the topic should be revisited in light of that opinion and what it means to practicing attorneys in our county. Two recent articles from other magazines lend justification to a repeat visit for exploring new wrinkles and implications.

A recent article in The Economist magazine opined about the growing trend of an on-demand workforce and how that is reshaping the way we do business. Companies and individuals have become more reliant on freelance workers who can be summoned quickly to address a specific issue. That trend includes attorneys. In a recent issue of The Pennsylvania Lawyer, author Ellen Freedman discussed the challenges and opportunities of the increasing presence of the part-time attorney.

Both articles touch upon the importance of social media in those two scenarios. The on-demand attorney and the part-time attorney are increasing. Some attorneys may follow those paths by choice while others must follow by necessity. Whatever the reason, how an attorney does business today is different than how the practice was a few decades ago.

That brings us to the review of the opinion.

The opinion does two things. It brings together under one roof various conclusions reached by the Disciplinary Board in several places related to social media. It also addresses new issues and clarifies others. The opinion itself is long. That is a good thing because it addresses several outstanding issues in detail. Specifically, it covers nine key issues.

• Advising clients on social networking content • Connecting to existing and former clients • Communicating to represented parties via social media • Communicating to unrepresented parties via social media • Using client-related matters on social media • Handling client reviews on social media • Attorneys commenting or responding to those client comments • Attorneys endorsing other attorneys • Attorneys connecting with judges on social media

The following are highlights from the opinion.

The Disciplinary Board concluded that an attorney may advise clients on what to do with their social media if it is relevant to the case. That is especially important with issues of evidence spoliation as reviewed in this author’s prior articles. If spoliation issues are present, then the attorney should advise that content stay. Advice for content removal is permissible if no spoliation or other legality issues exist, but the attorney should move carefully because the potential for content turning into evidence is omnipresent.

The Disciplinary Board also adopted the Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5.

An attorney can advise clients to restrict access to content but not Continued on page 33

32 |

New Matter

www.chescobar.org Continued from page 32 remove it. That protects the clients while preserving the content for evidence. The reader should review carefully that separate opinion and the others cited by the Board.

On another issue, attorneys may connect with clients or former clients on social media. Confidentiality must be maintained. If communicating with current clients, communication containing legal advice should be kept in attorney’s records. Practically, the wise attorney will gravitate toward a communication method that has a more secure reputation. Texting is obviously a poor choice along with Facebook postings as privacy cannot be assured.

Naturally, an attorney cannot directly contact a represented party without going through that person’s attorney first. An attorney can access the public portion of a represented party’s social media site, but he or she may not use that medium to communicate with that person. Requesting access to the represented party’s page is considered communication and is prohibited. The prohibition, however, also extends to using another person to gain access to a potential witness’s social media content. Doing that is referred to as “pretexting.” Pretexting is considered a false statement of material fact to a witness.

For the unrepresented party, the attorney can contact that person but cannot access or use pretexting to access private information.

Attorneys may use social media content in a legal proceedings when properly discovered. As discussed in this author’s prior articles, relevancy, authenticity, and other facets of the Rules of Evidence will provide the playbook for that. One point in the opinion must be stressed: an attorney may have a duty to identify and to use social media content as evidence in a case. That means that ignoring technology is a foolish act.

Attorneys may connect with judges through social media as long as reasonable efforts are made to avoid ex parte or influential communication. This author raises, however, a practical concern in following reasonable efforts. Social media can be a wild animal sometimes that may behave instinctively in unpredictable, risky ways. A careful control over a connection can quickly rise to a loss of control if wrong buttons are pressed—the line between public and private is awfully thin in social media.

The Disciplinary Board dealt with other crucial issues that are not highlighted in this article due to space constraints (and creating a long, boring article). Readers should download the opinion and read it carefully. Identify which social media sites and applications are relevant to the practice. Examine how social media is used. Look at not only internal social media but also what social media clients frequently use.

A few parting thoughts: The opinion gives weight to a growing concern that to remain competent under the Rules of Professional Conduct, attorneys need to be aware of new developments in social media. Such a duty is really common sense: society communicates in certain ways, and those ways change with the advent of new technology and new trends.

Furthermore, the reader should keep in mind that the opinion is not binding on the Disciplinary Board or any other court. It can be used by guidance. Also, the opinion does not address the use of social media in advertising and marketing, but it does say that while those issues are not discussed, the Rules of Professional Conduct do apply to those areas. Hopefully, guidance on that is around the corner.

Finally, how an attorney does business today may be different the next year. As more attorneys turn to part-time work as life choices or adopt the on-demand model to stay competitive, social media will continue to play a key role. Change does not wait. This opinion for Pennsylvania attorneys gives much needed guidance to deal with that change. It is a good starting point.

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New Matter

| 33

From The Archives ( New Matter—October 1981)

34 |

New Matter

www.chescobar.org C H E S T E R C O U N T Y B A R A S S O C I AT I O N

Upcoming Events For more details on all upcoming meetings and events, go to: www.chescobar.org/events

February 20

CCBA Ski Club Trip to Bear Creek

{ All Day }

March 4

B.U.L.L. Session (Better Understanding of Lawyers’ Lives) SEARCH ME! HOW TO

GET YOUR WEBSITE AT THE TOP OF THE SEARCH PAGE. { 5 – 6 pm at CCBA }

March 11

Stively Inn of Court – “You’re Out of Order”

{ 5 – 8 pm }

March 19

Spring Bench Bar Conference at The Desmond

{ 8:15 am - 4:30 pm }

(cocktail reception from 4:30 – 5:30 pm)

March 20

Naturalization Ceremony at the Chester County Justice Center (Courtroom 1)

{ 11:30 am – 12:30 pm }

Trusted advice and personal attention from local professionals.

To discuss your needs or a client matter, call Steve McGann at 484-359-3082, or Rick Weber at 484-359-3531.

April 1

B.U.L.L. Session

{ 5 – 6 pm at CCBA }

April 22

Stively Inn of Court — Topic TBD { Radley Run Country Club from 5 – 8 pm }

May 1

Law Day Luncheon { West Chester Country Club from Noon – 1:30 pm } Featuring Keynote Speaker President Judge Jacqueline C. Cody!

This year’s theme: Magna Carta: Symbol of Freedom Under Law.

DNB First is proud to support the CCBA Preservation Campaign.

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• For more information and to register: go to http://www.chescobar.org/event/2015LawDay. • Questions? Contact Emily Boulanger at eboulanger@chescobar.org or call (610) 692-1889.

New Matter

| 35

Wynton Marsalis

Yolanda Adams

Incognito

James Hunter Six

April 10-19, 2015 Reading, PA

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