THE AWARD WINNING PUBLICATION OF THE CHESTER COUNTY BAR ASSOCIATION • CHESTER COUNTY, PA
2014 Fall Bench Bar Conference We’re headed back to Bedford Springs Resort!
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New Matter CCBA Officers Lisa Comber Hall, President Craig Styer, President-Elect Bill Wilson, Vice President Christine Zaccarelli, Treasurer Mary-Ellen Allen, Secretary New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess Colleen Frens J. Stoddard Hayes Andrew Lehr Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Karyn Seace Alan Vaskas Bill Wilson CCBA Staff Wendy Hoffman Executive Director Emily Boulanger Communications Coordinator 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 maybe reproduced electronically or in print without the expressed written permission of the publisher or editor.
Content FEATURES Observation Hospital Stays Can Cost Medicare Beneficiaries............................. 6
BACK TO BEDFORD SPRINGS
PA Commonwealth Visits Chester County................................ 8 Rain or Shine— Annapolis Was Still a Lot of Fun............ 10 Federal vs. State Softball Game............ 12 Reviving CCBA’s Historical Committee... 14 Join Us for the Opening of the Judicial Year.................................. 14 Legal Lemonade Day at CCBA................ 15 Featured Member Profile Kelly Phillips Erb, Esquire.............................. 16 CCBA Staff Goes to the Hospital............. 18 From the Archives New Matter—December 1981.................... 30
TIPS FOR IDENTIFYING SOCIAL MEDIA EVIDENCE
IN EVERY ISSUE President’s Message................................... 4 From the Bench.........................................20 The Blank Page..........................................22 YLD Details.................................................23 Save Our Environment.............................24 Mary’s Country Corner..............................26 Your Bar Foundation.................................28 Tech Tips.....................................................29
If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at firstname.lastname@example.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, email@example.com
Back to Bedford Springs By Lisa Comber Hall, Esquire, President
“Twenty years from now you will be more disappointed by the things you didn’t do than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover” – Mark Twain
n other words…back away from your desk, leave the business suits at home, hop in a car and join us for our fabulous 2014 Fall Bench Bar Conference at Bedford Springs Resort!
For many years now, the Judges of the Court of Common Pleas of Chester County (“the Bench”) and the members of the Chester County Bar Association (“the Bar”) have taken a couple of days out of their busy schedules to mingle and attend CLE seminars in a relaxed environment. Our annual Bench-Bar Conference is one of the CCBA’s premier events and has a loyal following; attracting almost 200 lawyers and judges to the conference that has been a tradition for many decades. The members of our Bar are very fortunate to have such a positive working relationship with the Bench and look forward to spending time together on the golf course, in the spa or relaxing anywhere on Bedford Springs Resorts’ beautiful 2200 acres. Of course, there will be informative seminars where you can earn up to six CLE credits on interesting and relevant topics. We’re also pleased to have keynote speaker Dr. Lewis Losconcy, a motivational psychologist, who will kick off our conference Friday morning. Don’t miss Saturday’s plenary session with Ken Gormley, Esq., Dean and Professor at Duquesne University School of Law and author of The Death of American Virture: Clinton vs. Starr. Our conference is a wonderful opportunity for lawyers from many firms and practice areas to get together with our judges, learn from each other and continue to strengthen the already solid Bench Bar bond that brings us together every year. Finally, I highly encourage you to enjoy the collegiality and camaraderie of the Bench and Bar during the free/unscheduled times during the conference. You will be amazed by what you learn about the practice of law (and your colleagues) during the late night gatherings by the fire pit, competitive games of ping pong and spontaneous sing alongs with our own Joe Caffy on the piano.
“It’s not the years in your life that count. It’s the life in your years.” –Abraham Lincoln MARK YOUR CALENDARS! FOR OUR 2014 FALL BENCH BAR CONFERENCE
October 9th–11th Bedford Springs Resort–Bedford, Pennsylvania
The couple was told they couldn’t have a child.
A lawyer suggests they adopt. The counselor tells them ﬁve years. A lawyer tells them one. Social Services approves them for adoption. A lawyer puts it in writing. The judge signs the order. A lawyer’s work ﬁnalizes it. They thought they couldn’t have a child. A lawyer helped make it possible.
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Observation Hospital Stays Can Cost Medicare Beneficiaries By Janet M. Colliton, Esquire, Colliton Elder Law Assocs., PC
hen you go to the hospital, are placed in a room, and stay more than a few days, you might think it is obvious you were “admitted” to the hospital. Controversy surrounding observation hospital stays makes that conclusion less certain. The distinction between admission and observation becomes important for Medicare patients because of insurance coverage.
If you are on Medicare and “admitted” to the hospital, your coverage is considered under Medicare Part A. If you are not “admitted,” even if you are sleeping in a hospital bed and receiving meals there, and even if tests are being run, you are considered to be under observation. Under observation means outpatient and is covered under Medicare Part B, a less generous coverage with more copays and deductibles.
ous Medicare A and Medicare Supplement coverage. If you were “under observation” even if you were there for more than three midnights, then the costs fall under Medicare B. Importantly, if you need rehabilitation in a nursing facility following hospitalization, the room and board cost for an observation patient in rehab will not be covered at all and could run $300 per day more or less. You do not have this problem if you were admitted to the hospital and the costs (minus deductibles and copays) are covered under Medicare Part A and your Medicare Supplement plan for up to 100 days. Obviously, it is better to be “admitted.”
Another consequence of being classified as under observation and under Medicare Part B in the hospital is that you are not then eligible to receive the “up to 100 days” additional Medicare One reason for this problem has been Part A coverage for rehabilita- attempts by Federal Recovery Audit tion in a nursing home afterward. Contractors (RACs) to hold down hospital costs. If a Recovery Audit Contractor or Suppose you are over 65 and another Medicare reviewer determines that covered by Medicare with a a patient has been incorrectly classified as Medicare Supplement plan. You inpatient, the hospital is denied reimburseexperience severe weakness and ment for most services despite the fact that shortness of breath and go to the the services were considered medically hospital emergency room. The necessary and coverable by Medicare. This emergency room personnel are means, if there is disagreement between the unable to determine the prob- hospital and the reviewer as to whether the lem’s source, and, after initial services should have been considered outmeasures are taken, move you to patient, the hospital is at risk for the cost. a room. You stay in the hospital for another three days while tests Another problem for hospitals is readare being run. mission penalties. Originally introduced as incentives to hospitals to have appropriate If you were “admitted” and care plans in place so that patients would three midnights have elapsed, not return for treatment for the same the tests and medications are condition, readmission penalties have continued on page 7 covered under your more gener-
www.chescobar.org continued from page 6 also become an incentive to label patients as outpatients. If the patient was never admitted, he or she would not have been discharged. There would be no readmission penalty if that patient returns. What can be done? If you or a family member or friend is hospitalized, clarify whether the hospitalization is considered an “admission” and the date and time. Classifications can be changed retroactively but it is helpful. Where help is needed, consult your doctor first, then, if needed, an attorney with background in the field or the on-line resources of the Center for Medicare Advocacy, www. medicareadvocacy.org. Note that there has been a federal class action case, Bagnall v. Sebelius, in Connecticut considering these issues. Also, while CMS, the Federal Center for Medicare and Medicaid Services, has issued regulations for a “two midnight” rule, this does not solve the problem. Finally, bills with bipartisan support have been introduced in Congress, the Improving Access to Medicare Coverage Act of 2013 (HR 1179) cosponsored by Representative Joe Courtney
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(D-CT) and Tom Latham (R-IA) and S.569 co-sponsored by Senators Sherrod Brown (D-OH) and Susan Collins (R-ME) that would make all time spent in the hospital count toward the three day (three midnights) requirement for rehabilitation coverage under Medicare Part A. If you are in agreement, you might consider writing, e-mailing or texting your comments to your U.S. Representative and U.S Senator. It might make a significant difference.
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Pennsylvania Commonwealth Court Visits Chester County By Charles T. DeTulleo, Esquire
...the Chicago Tribune newspaper and WLS-TV, the local ABC affiliate, sought to have his records released. Both Jeri and Jack agreed to make their divorce, but not custody, records public, saying their release could be harmful to their son.”
Left to Right: Kristen Brown, Judge Cohn Jubelirer, President Judge Dan Pellegrini, Michael F. Krimmel
n Thursday, June 19, 2014, the Commonwealth Court of Pennsylvania honored us by providing a free Continuing Legal Education (CLE) program entitled “Harm Caused by Access to Court Records—An Attorney’s Ethical Obligations.” The one hour ethical program featured the following speakers: The Honorable Dan R. Pellegrini, President Judge, Commonwealth Court of Pennsylvania, The Honorable Renée Cohn Jubelirer, Judge, Commonwealth Court of Pennsylvania, Kristen W. Brown, Esq., Prothonotary, Commonwealth Court of Pennsylvania, and Michael F. Krimmel, Esq., Chief Clerk, Commonwealth Court of Pennsylvania.
The content of the program dealt with the increasing accessibility of the world to see all of the documents in almost every case that is in the Pennsylvania system. And, the access is increasing by leaps and bounds as the courts continue to expand the ability to do business electronically. It seems that privacy may be a thing of the past when it comes to court record filings. But there is some hope, although complicated. Those who attended now know more about how to protect their clients’ private information in the future.
On June 18, 2004, Los Angeles Superior Court Judge Robert Schnider agreed to release the custody files. The decision generated much controversy because it went against both parents’ direct request, and reversed the decision to seal the papers in the best interest of the child. It was revealed that six years earlier, Jeri had accused Jack Ryan of asking her to perform sexual acts with him in public, and in sex clubs in New York, New Orleans, and Paris. Jeri Ryan described one as “a bizarre club with cages, whips and other apparatus hanging from the ceiling.” Jack Ryan denied these allegations. Although Jeri Ryan only made a brief statement, and she refused to comment on the matter during the campaign, the document disclosure led Jack Ryan to withdraw his candidacy; his main opponent, Barack Obama, then won the 2004 United States Senate election in Illinois.
The former Mrs. Ryan ( Jeri Ryan) is better known for her part in the series of Star Trek Voyager. Judge Pellegrini is probably not an avid fan of the series and identified Ms. Ryan as “6 of 9.” More than one member of the audience (including me) was quick to point out that she did in fact Oh, and as a side bar to the “future,” P.J. play the part of “7 of 9.” For those fans out Pellegrini used an example of an Illinois there who follow the series, it provides the divorce case involving litigants Jack and complete identity of Ms. Ryan’s character Jeri Ryan. According to Wikipedia, after as “Seven of Nine, Tertiary Adjunct of The consensus of opinion after the pre- their divorce Jack Ryan decided to run for Unimatrix Zero-One.” sentation was “Wow, I didn’t know that.” the open U.S. Senate seat in Illinois. continued on page 9
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Following the CLE there was a reception for the court in the Chester County Bar Association building. The reception was sponsored by the Chester County Bar Association. It was a very well attended reception with many of the judges taking their valuable time to socialize with members of the Chester County Bar.
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Additionally, the court held oral arguments in Courtroom #1 of the Chester County Justice Center on Friday, June 20, 2014. There were nine cases scheduled for the session. At the appointed time, the President of the Chester County Bar Association, Lisa Comber Hall, opened the session by welcoming the members of the Commonwealth Court who had traveled from throughout the state to join in the session. The joint session of the Commonwealth Court and the Chester County Court of Common Pleas was opened by the Honorable Jacqueline Carroll Cody, sitting in for President Judge James P. MacElree, II. Judge Cody provided a short background concerning the Commonwealth Courts decisions and how it may affect the citizens of Pennsylvania. She then turned over the session to President Judge Pelligrini. In his opening remarks, P.J. Pelligrini asked forgiveness for taking over Courtroom #1 from P.J. MacElree without asking him. Judge Cody assured him that P.J. MacElree had been notified and approved. P.J. Pelligrini expanded on the importance of the Commonwealth Court opinions after introducing those of his court in attendance. Judge Cody then concluded the joint session and the entire bench retired. Next the three judge panel of President Judge Dan Pelligrini, Judge Paul Kevin Brobson and Judge Anne E. Covey occupied the bench of Courtroom #1. There were preliminary instructions to the litigants and then each case was called for argument.
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Each of the three judges knew the facts and had already planned their questioning of the litigants so that the process became streamlined and not bogged down by minutia.
Hopefully the court will agree to visit Chester County again. During the presentations of the various litigants the panel They are always welcome. Thank you President Judge Pelligrini provided well developed and insightful suggestions to the attor- and the members of your court and staff. neys arguing their cases. In many instances the bench provided a shortcut of the real issue of the appeal. There were a variety of issues involved in the appeals but this writer was impressed by the intricate knowledge of each case that was before the panel. New Matter
2014 BAR SAIL
“High winds and high fashion” Cathy Wilson, Bill Mitman
“Gilligan called and is looking for his hat”
“Why selfies should be outlawed” John Fiorillo, Lisa Comber-Hall
“Past Presidents irked by the paparazzi” Don Kohler, Deni Morton
RAIN OR SHINE— Annapolis Was Still a Lot of Fun By John F. McKenna, Esquire
ur annual Bar Sail took place on June 12th and 13th, 2014 in Annapolis, MD. Some boats sailed from Rock Hall, Maryland and some originated right from Annapolis and did the “Loop.” The weather for Thursday, unfortunately, was all rain. Everybody sailed under cover. The next day, Friday, was a bit better in the morning but it rained again later on in the afternoon.
However, the real fun was when we docked and people hopped, albeit with umbrellas, to each other’s boats to sample each other’s offerings. The MacElree Harvey boat featured the famous “Mitman punch” which is a refreshing cocktail mixed with different kinds of rum and fruit juices. I seem to remember having one or two. At night, besides dining at Buddy’s Crabs and Ribs, most extended their evening and went bar hopping, which is really the signature event for the attendees. Despite the weather, the Bar Sail was very well attended this year.
I can’t wait to see what happens next year.
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CCBA Feature 9 TH A N N U A L
Federal v s. State SOFTBALL GAME By Shannon K. McDonald, Esquire
he day dawned rainy and dismal, but by the late afternoon the sky had cleared and the sun shone. Wendy Hoffman and her staff had arranged a grand setup on the West Chester University softball field, and had somehow convinced a t-shirt maker and WSFS Bank to provide them with not just awesome team colors, but also sunglasses, hats, and all the Bazooka Bubble Gum (in regular and blue raspberry) that the players could chew. I’m pretty sure between Colleen Frens and Jonathan Harrar the box had a pretty good dent in it. There we are: the Federals in somber gray and the State team in bright green—like the grass? No brighter, more like chartreuse—ready to try again in the 9th annual game. Basil Frens, in Converse sneakers, also debuted his new nickname, a.k.a. Christmas; he and a number of other State players made the
2014 Federal vs. State Softball Teams
mistake of pairing red with their chartreuse shirts, leaving some very lurid Christmas feelings lingering over the field. With a stand full of children cheering and their suddenly athletic fathers (none of the women had children there; I’m not being sexist!), and with me sitting front row, just beside the batter, the Federal versus State softball game began. A.J. Ober played captain of the State team, and Judge Sanchez captain of the Federal team. Both told me some stats I should write into this article, but in case you hadn’t realized, I’m not that kind of sports writer. Judge Hall pitched for the State, Judge Shiller for the Federal team. Judge Sanchez, for the first inning, played catcher, perhaps to keep an eye on Bruce Laverty and ensure he called the plays fair, but by the third
inning he had moved on to more exciting positions, realizing the futility of questioning the impartiality of a judge, even of an umpire. I should also note that Bill Wilson, of the Bar Association softball team fame, and wearing the blue of that team, switched over to the Federal team, resulting in some cat calling. Chris Zaccarelli and Colleen Frens played as the females on the field, both for the State. The first inning went smoothly, no extraordinary plays, ending 2–3 Federals. In the second inning solid playing shut down the Federals early, leaving them with no bases taken and (I suppose obviously) no runs scored. The State pulled ahead for the first and only time that inning, closing 6–3 State. That score is not just some good base hits, but also a home run by Kevin Pierce. A continued on page 13
slide into third base by the Federals allowed them to pull ahead in the third, marking the only slide and the only blood in the game. A catch by Judge Hall from the pitcher’s mound closed out the third inning 6–7, Federals. The ever diplomatic President of the Bar Association, Lisa Hall, cheered them all on, no matter the team. Mid-game neither team was giving anything, but a solid line of young men batted themselves and the Federal team through a round of home runs, ending the fifth inning 6–12, Federals. The Federal fielders shut out the State team in the 6th, but a nice grab from catcher’s position by Chris Zaccarelli staunched the bleeding for the State team 6–17, Federals. Each team managed one more run in the seventh, and that run for the Federals marked their only home run of the game. Despite one child demanding nine innings, at seven we broke for dinner and became, once again, lawyers and judges, as opposed to athletes. So until next year, the Federal team still holds the title, and we’ll see you all again then, hopefully with a more accomplished sport writer.
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Reviving CCBA’s Historical Committee
By Patrick McKenna, Esquire, Chair
n order for history, defined as “the whole series of past events connected with someone or something,” to be preserved, perpetuated and appreciated there must be a conscious effort made by the successors of said “someone or something.” To archive events is to preserve them in such a way that we can look back and have a true sense of the events that have occurred in the past. This glimpse into past is crucial for the smooth operation of any group both now and in the future; this goes for the Chester County Bar Association, as well. The Court and Bar of Chester County have rich histories that date as far back as the early 18th Century. Through the establishment and production of the CCBA Historical Committee, the 200 years of history that have made the Chester County Bar Association what it is today can be made available to the Association’s members and citizens of Chester County. In the past, the CCBA’s Historical Committee consisted of at least three committee members and one chairperson that served for one year until a successor was appointed. The committee was responsible for archiving the history of the Association, while also making the information available to CCBA members and the public. In recent years, the Historical Committee has become
dormant; however, the Association is now eager to not only reinstate it, but to improve its reach and effectiveness as never before. The mission of the Historical Committee is to remain “responsible for the collection and appropriate safekeeping of all documents and records printed and otherwise deemed by the committee to be an accurate testimony of our historical interest in connection with the activities in existence of the Chester County Bar Association or any of the members thereof or with respect to any predecessor organization” (CCBA Bylaws). By becoming a part of the CCBA Historical Committee, you can help create a new piece of history while helping to preserve the old. Through the dedication of those we hope will join the Historical Committee, we will have a whole new pool of historical artifacts (photos, newspaper articles) from which to choose and share with the rest of the Association through outlets like New Matter, as well as on our website. As the new Chair of the committee, I welcome you to join us! If you are interested, please contact Wendy Hoffman at firstname.lastname@example.org or 610.692.1889. The committee plans to schedule our first meeting later this summer. We hope you join us to help the Chester County Bar Association treasure its plentiful history!
Join Us for the Opening of the Judicial Year By Karyn L. Seace, Esquire
id you know that there is an official judicial year? Well there is, and there is an official opening too. In the United States, a judicial year commences on the first Monday in October, and it traditionally opens by a ceremony called the Red Mass. The Red Mass is celebrated annually for judges,
attorneys, paralegals, secretaries and anyone else who works in, or with, the legal profession. The purpose is to allow a quiet opportunity, prior to the opening of the judicial year, to reflect on the awesome responsibility that we all have to those who seek justice in our legal system. The Red Mass is not new. In fact, the first recorded Red Mass was celebrated in Paris in the year 1245. It was celebrated in England in the reign of Edward I from 1272, and then it quickly spread through all of Europe. But, it was 1877 before the first
Red Mass would be celebrated in the United States. It was held at the Saints Peter and Paul Church in Detroit, MI. The first Red Mass in Chester County was celebrated at Saint Agnes Church on October 25, 1995. Now that Chester County is in its third judicial century, I encourage all of you to come and experience the opening of the judicial year. I have attended the Red Mass every year since 1997. It has become a tradition for my family and friends who also accompany me. Each year there is a reception afterwards, and I think that it is this that my parents enjoy the most. It is an opportunity for them to see where I work and with whom I interact every day. The Red Mass will be held at Saint Agnes in October, with a reception to follow. I look forward to sharing my tradition with all of you, as well as your family and friends.
CON GRATUL ATIONS!
Legal Lemonade Day at CCBA!
William H. Lamb
Receives Legal Intelligencer’s 2014 Lifetime Achievement Award
he Chester County Bar Association is a proud partner of the home-grown, national non-profit organization, Alex’s Lemonade Stand Foundation (ALSF). On June 6th, 2014, the Bar Association hosted four lemonade stands throughout West Chester and Exton for our 4th Annual “Legal Lemonade Day.” Stands were located at the Chester County Bar Association’s office and at the law offices of Gawthrop Greenwood, PC, Lamb McErlane, PC and Fox Rothschild, LLP. The Bar Association’s members, along with the members of the Chester County community, came out in force to enjoy a cup of lemonade and support children’s cancer research. The goal of Legal Lemonade Day is to raise both money and awareness; and this year’s stands generated almost $4,000! We are proud to have the opportunity to give back by supporting an organization that helps in the fight against childhood cancer—one cup at a time. Looking for inspiration? Learn how four-year-old Alex started a national campaign to raise funds for children’s cancer research and exceeded her goal immensely by going to: http://www.alexslemonade.org/about/meet-alex
Patrick Gallo, Lindsay Dunn, Stephanie Gibbs, Cara Cassidy of ALSF and A.J. Ober, CCBA YLD Chair
West Chester, PA—Lamb McErlane PC is proud to announce that Justice William H. Lamb, Chairman of Lamb McErlane PC, is a recipient of The Legal Intelligencer’s 2014 Lifetime Achievement Award. He annually has been recognized as a top 100 Pennsylvania Super Lawyer for appellate law and a Pennsylvania Super Lawyer since 2005. Justice Lamb also served as District Attorney of Chester County. He is an active member of the community and served on the President’s Advisory Committee on the Arts, the Commonwealth of Pennsylvania’s Court of Judicial Discipline as President Judge, the Pennsylvania Elections Reform Task Force, the Greater Philadelphia Chamber of Commerce and as a Senior Trustee for the Episcopal Academy in Newtown Square, PA. “We as a firm are proud that Justice Lamb was selected to receive this prestigious award,” says Lamb McErlane PC Managing Partner Joel L. Frank. “His accomplishments, legal acumen and guidance are an inspiration to our firm and to the community and clients he serves. We congratulate him on his past and present successes, as well as those still to come.”
CCBA Featured Member Profile
Kelly Phillips Erb, Esquire At-A-Glance Kelly Phillips Erb is an attorney and shareholder with the Erb Law Firm, PC. Her primary practice area is tax law including: tax planning for corporations, domestic and international tax planning, formation and administration of nonprofit and charitable organizations, tax compliance work and tax controversy matters such as delinquencies, offers in compromise and audits.
Kelly is the PBA Co-chair of the Women in the Practice of Law (WIP) Quality of Life Committee and Treasurer of the PBA Solo and Small Firm Section. On the non-legal side, Kelly is a PTA Member and volunteer with the West Vincent Elementary School. She also coaches “Girls on the Run.” She is a founding member of the Wissahickon Sustainability Council and former President of the Roxborough Development Corporation.
She authors the popular “TaxGirl” blog for Forbes.com, which has been consistantly recognized by the ABA Journal as one of the top blogs written by lawyers. In addition, Erb has written and has been interviewed about taxes for CNNMoney.com, Reuters, Time, and AOL’s WalletPop. She has been tapped for her ability to explain taxes in plain English by numerous media outlets, including National Public Radio’s Marketplace, ABCNews.com, Esquire, CBS Radio, Marketwatch, Inc. and the Philadelphia Inquirer. Kelly has also published “Ask the TaxGirl: Everything Parents Should Know About Filing Taxes (Including Child Care Expenses, Medical Costs, and the Earned Income Tax Credit)” together with Forbes. Kelly received her J.D. and LLM in tax from Temple University School of Law and practices in both Pennsylvania and New Jersey. She is a member of the Chester and Montgomery County Bar Associations and is co-author of the “Legal Tech” column for PA Lawyer Magazine.
Kelly Phillips Erb, Esquire—Cont’d.
Of Personal Interest Where are you living now? Chester Springs, PA What was your first job?: Answering the telephones for six separate businesses on one telephone with six lines, including a print shop, Chamber of Commerce, ministorage, and local newspaper. Also worked at the print shop to put together ad booklets. What word best describes you? Hopeful Where would we find you on a Saturday afternoon? In the dirt. I love to garden.
Who is the person you are most interested in meeting? I would love to have been able to sit down for drinks with Elizabeth Cady Stanton, Susan B. Anthony, and Amelia Bloomer in the mid–19th century to discuss voting, parenting, and newspapers. What is the last book you read? Currently reading The Dylanologist by my friend, David Kinney What is your favorite TV show? The Amazing Race What has been your best, worst, and toughest decision? All of these answers relate to being a mom. My best decision was to become a Mom but every day you worry that you are making the best decisions for your children and wonder whether you ever should have gone back to work.
What is your favorite way to spend free time? Baking. I am oddly domestic (a testament to growing up in the rural South).
What do you like best about your job? I get to help people and actually bring things to a resolution.
I would not leave home without… My phone
Do you have any goals yet to be achieved? I’ve been really fortunate to achieve most of the things I’ve set out to do. I graduated college and law school, started my own firm, wrote for newspapers and magazines, published a book...I have this great family. I don’t know what’s next but I sure am excited to find out.
What is your greatest extravagance? Dinner and a fine wine at a nice restaurant. What is the honor you are most proud of? Being the first person in my family to graduate from college. I was only sixteen years old when I started college.
What is a little known fact about you? I was a pageant girl!
What is the most important lesson you’ve learned? Make sure the decisions you make allow you to live a life without regret.
CCBA Staff Goes to the Hospital! By Wendy Hoffman, Executive Director
ell that got your attention! If you heard that twice a month multiple CCBA staff end up at the Chester County Hospital in West Chester, you might be concerned that there was a major issue with illness or injury; but, what if you heard that those trips were made for a good cause? All of our staff members at the Bar Association do indeed make monthly trips to the hospital, to pick up meals readied for those less fortunate in the borough. The program, Meals on Wheels, pairs CCBA employees, who pick up the meals from the Chester County Hospital, with a booklet of names and addresses which instruct where and to whom each meal should go. Equipped with a warmer full of food and a cooler with drinks, they head out all over the borough, visiting house-bound people that could use a hot meal or some good conversation. How did we get involved? It’s a great story. Each year the staff celebrates
Christmas and does a “Pollyanna” gift exchange. When drawing names, we each holiday gathering, that evolved into a conprovide three ideas of items we might versation about volunteering with Meals on like to receive as our gift. Two years ago, Wheels and actually delivering the meals. our Assistant Executive Director, Genya The staff wholeheartedly agreed that they Cunningham, listed three local charities would like to participate and we’ve been that she would like to receive a donation delivering ever since. made to rather than a gift for herself—and Meals on Wheels was on her list. At our The tradition of bringing food to those who cannot leave their homes is not new. In fact, Meals on Wheels has been delivering meals to people all over Chester County for over 40 years. It all started here in the borough of West Chester in 1971, and expanded to include the rest of Chester County by 1991. Since then, the organization has grown to include 20 different chapters all over our area. Today, Meals on Wheels has over 30 different routes throughout Chester County that serve over 600 house-bound residents. continued on page 19
als eels on
In 2013 alone, approximately 67,000 meals were delivered to our neighbors in Chester County. Although this might seem to be a staggering number, Meals on Wheels are always searching for more volunteers in order to be of service to even more homebound people in our area. The staff at the Chester County Bar Association are happy to be able to provide healthy, balanced meals to our neighbors through Meals on Wheels of Chester County, and we would be honored to have you be a part of the team. If you or anyone you know is interested in giving back to your community through the Meals on Wheels program, contact me at whoffman@ chescobar.org or 610.692.1889. It takes just one hour out of the office. Help us serve our fellow Chester County residents through this wonderfully enriching program.
SAVE THE DATE!
CCBA Annual Meeting
Thursday, December 4th, 2014 Historic Chester County Courthouse
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In Memoriam of
Michael F. Petock
What is The CCBA Law Related Education Program? The Law Related Education Program (LRE) is sponsored by the Chester County Bar Association and partnered with the Chester County Intermediate Unit. We prepare and assist with the implementation of curriculum for the "Legal Education for Youth” program offered to schools throughout Chester County. The program covers topics that deal with various areas of the law according to grade levels. These units normally represent a topic within their current Social Studies curriculum. A Chester County Bar Association attorney volunteer goes to the school to present the material. The demand for our program is tremendous and we need attorney volunteers! The Chester County Bar Association has offered this program for many years and is committed to providing law related education to the youth of Chester County. It is a very rewarding experience for our attorneys and youth in our community. The Law Related Education program currently covers the following topics:
Going to Court
Personal & Real Property Law
7th, 8th & 9th Grades
Protecting Our Environment
9th & 10th Grades
Vice President, Business Development
email@example.com Office 484-442-6533 Cell 610-608-8706 Member FDIC
To volunteer for this program, contact Kevin Connelly firstname.lastname@example.org or (610) 692-1889
From The Bench
By Hon. John L. Hall
hester County Common Pleas Judge John E. Stively was a teacher before he became a member of the Pennsylvania bar. Those, like me, who practiced as young lawyers before Judge Stively, benefitted from his earlier profession. Fortunately for us, he never stopped teaching. Even passively, he instructed merely by his example. As we came to understand Chester County practice, he embodied it on the bench. Calm, learned, good-natured and patient, he was not a judge you feared to practice before, even if you lacked experience. He would correct you without embarrassing you if he could.
In early 1986, during his final months as President Judge, he provided me, and other trial attorneys of the Chester County District Attorney’s office, with lessons of trial advocacy during a lecture he titled, “The Effective Advocate.” Subsequently, before each of my jury trials, I referenced my notes of that presentation to remind me of his advice. In furtherance of Judge Stively’s example, my notes follow for those learning Chester County trial practice: continued on page 21
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The Effective Advocate By Judge John E. Stively, Jr.
March 27, 1986
1. Rise to your feet when addressing the judge.
19. Use diagrams and charts to help jury understand.
2. Show judge respect.
20. Prepare your case—facts and law.
3. Don’t ask judge tactical questions.
21. Make a checklist of things you have to prove (e.g., value in theft case).
4. Only object when questioning will hurt not because it’s technically correct. 5. At sidebar take a position and hold it; don’t withdraw argument because it makes a difficult decision for judge. 6. Don’t protest adverse ruling—get ready for next round. 7. Don’t appear to be a friend or buddy with opposing counsel (in front of jury); don’t use first name; be reserved. 8. Don’t let jury think the case is a joke; don’t smile too much during trial or laugh.
22. Have checklist for each witness. 23. Don’t ask questions like, “Do you know if watch was running” because answer “yes” implies watch was running but that isn’t the question. Don’t use “Did you have the occasion to do something?” 24. Be careful of last question on cross. 25. Highlight essence of witness testimony in closing argument. 26. Read Rothblatt, “The Art of Cross-Examination.”
9. Never argue directly with opposing counsel; address the judge and make comments through the judge.
27. In cross, try to figure out what you want to accomplish; don’t just have witness regurgitate testimony; leave alone good answers for you; don’t let witness have chance to patch up an answer that was helpful to your case.
10. Don’t let opposing counsel make a speech to a jury. If opposing counsel is asked to state a ground for an objection, don’t let him/her in front of the jury begin “I’m trying to show…”
28. Make notes of direct examination; draw line down middle of legal pad, on left write direct questions to ask witness, use right side to jot down redirect questions as cross examination proceeds.
11. Don’t let counsel conclude with leading questions to summarize the testimony; don’t let counsel lead on redirect.
29. Sometimes it’s smart not to ask questions on cross.
12. Appear to be in control in front of jury; seem to know what you’re doing. Have correct papers organized; don’t fumble with items in front of jury. 13. When standing in front of jury, stand on own feet look them in the eye; don’t lounge against anything. 14. Use change in volume to make a point; hit the important points; vary your voice. 15. Avoid “ahh” and “you know.” 16. Listen to yourself once in awhile. 17. Have witness speak up. 18. If witness marks something, have it identified and shown to the jury; let them in on the secret, not in closing argument or jury room; you are trying to convince jury.
30. Every question of cross should be leading. 31. Don’t ask cross examination question unless you have a chance of proving it wrong; don’t let witness give truthful testimony—he’ll sound and look truthful. A witness who is lying will want to testify about those aspects of the matter which are truthful and brush over the part where he has to lie. Focus your questions on the part he’s lying about. 32. A witness with sympathy of jury (e.g., mentally slow), don’t tear apart; do it kindly if you do. 33. Always remember the jury is the group you’re trying to impress. 34. Be the trial advocate you want to be and make yourself into that.
The Blank Page
Fifty Years Ago By Mark Blank, Jr., Esquire
h, 1964; what a year it was! Where were you, if you were at all? Where was I? Well, I was in my senior year at Germantown Friends and, in April, received an acceptance letter from Tulane for my freshman year in college. (Tulane was my first choice; I was advised that I would not get in and, once I did, was further advised that I would not get through. Well, wrong on both accounts.) Thus, my first semester of college was in the Crescent City (a.k.a. The Big Easy). In the news, the Beatles landed in New York, and performed their first set (of three) on The Ed Sullivan Show (February 7th, beginning with “All My Loving”). Nelson Mandela was sentenced to life in prison. The World’s Fair was held in the Big Apple. The Civil Rights Bill was passed effective January 1, 1965. (The Constitutionality of the Bill was upheld. See, infra.) Three civil rights workers (Shwerner, Goodman and Cheney) were murdered right outside of Philadelphia (Mississippi, that is). The presidential elections were held; purported conservative Barry Goldwater versus supposed liberal Lyndon Baines Johnson. Congress approved the Gulf of Tonkin Resolution. The President’s Commission on the assassination of President Kennedy issued the Warren Report concluding that Lee Harvey Oswald acted alone. (Writer’s note: if he was the actor at all, for which there has never been any conclusion.)
In sports, the Winter Olympics were held in Innsbruck and the Summer Olympics took place in Tokyo. The Saint Louis Cardinals won the World Series. The Cleveland Browns were victorious in the National Football League championship. University of Alabama was voted by the Associated Press as the number one college football team (remember Bear Bryant?). In pop music, yes, the British invasion. The Beatles recorded LPs Meet the Beatles!; A Hard Day’s Night; Something New, plus a whole host of 45s. Other invaders included The Dave Clark Five (“Glad All Over”); Jerry and the Pacemakers (“Don’t Let the Sun Catch You Crying”); Peter and Gordon (“A World Without Love”); The Searchers (“Needles and Pins”); Dusty Springfield (“I Only Want to be with You”); Petula Clark (“Downtown”). Although the British invaders took the stage, that did not stop recordings by The Four Seasons (“Ronnie”, “Dawn”, and “Rag Doll”); The Beach Boys (“Fun, Fun, Fun”, “Dance, Dance, Dance”). And by the way, The Beach Boys recorded their first number one hit, “I Get Around”. (Also by the way, three of the five original Beach Boys are still alive and fighting.) And then there was Dionne Warwick, “Walk on By.” Dionne Warwick is alive and well, and in bankruptcy. In film, A Hard Day’s Night (of course) and All The President’s Men. In the Supreme Court, the Civil Rights Bill of 1964 was held to be Constitutional in Heart of Atlanta Motels, Inc. vs. United States, (1964). The libertarian-led Supreme Court found that Congress had the power to pass the Bill pursuant to the Commerce Clause. And finally, New York Times vs. Sullivan, 376 U.S. 254 (1964). Reversing a Five Hundred Thousand Dollar ($500,000) verdict for libel, the Supreme Court held that for a public official to prevail in a defamation action, he or she would have to prove malice, that is, that the material is knowingly false or in reckless disregard of the truth. Justice Brennan delivered the opinion of the Court and remanded the case, but barred Sullivan from a retrial based on the theory that Sullivan did not prove malice the first time and, thus, would not be able to prove it in a second trial. (Although I agree that Justice Brennan was justified, I still scratch my head.) Okay, that’s all folks, at least until next year.
YLD to Participate in Wills For Heroes Program By Shannon K. McDonald, Esquire
n November the YLD will gather and participate in the Wills for Heroes program. Wills for Heroes provides first responders throughout the nation with essential estate planning documents, including wills, powers of attorney, living wills, and healthcare directives. The YLD will offer the basic estate planning service to the Westtown first responders, and expects a good response to their efforts. First responders include fire, police, and ambulance personnel. The Wills for Heroes foundation began in South Carolina, in 2001. Anthony Hayes, a partner at a law firm in Columbia, South Carolina, had wanted to help the local fire department, and offer support in whatever way he could. After talking with their fire department, he began to see a glaring need for basic estate planning, especially for people going into dangerous situations. The numbers of first responders who have estate plans in place is very low. The Wills for Heroes website sites studies that show 80–90% of first responders do not have even a basic will in place. When these people go out every day and put the good of the community before their own safety, it is important for the community—(and lawyers as part of the community)—to assist in whatever way they can. The Wills for Heroes program is now nationwide, and the Pennsylvania Bar Association’s YLD sponsors the program in Pennsylvania. Therefore, it’s appropriate for Chester County’s YLD to join in the fun. If you’re a young lawyer, contact A.J. Ober, chair of the YLD, for information on how to participate in November’s event. Not only will you be provided with the basic estate plan documents and get some good hands on experience with putting together plans, you will also feel good about who you are helping: local first responders including fire fighters, police, and EMTs. They do the dangerous work, and we can give back by helping them to plan ahead.
Happy Hour at Mas Cantina By Shannon K. McDonald, Esquire
n May 28, the Young Lawyers Division teamed up with WSFS Bank to host a happy hour for all members of the Bar Association. Although the pouring rain caused the happiness to be moved inside, it didn’t dampen the spirits of those who showed up—even those who arrived mid-rain storm. With the rain preventing the happy hour from being on the rooftop, it did allow us all to avoid taking any stairs, and enjoyed the atmosphere in the first floor bar, with snacks and beverages.
At the event, Wendy Hoffman and Kim Denise Morton introduced the newest branch manager of WSFS, Lynn Sponheimer, who assured us that WSFS would continue to be the very helpful institution that it is in West Chester. Lynn knew we weren’t there to learn more about banking and IOLTAs, so she kept her comments short and tried to meet more members personally. A.J. Ober, chair of the YLD, got a good turn out from the members of the YLD, including some who came in from Berwyn, just for a free beverage at Mas and the opportunity to socialize. And socializing there was! With members from all divisions of the Bar Association, and a good showing from the larger law firms with their new interns, the event turned out plenty of people and was still hopping when I left at the end of the hour.
Save Our Environment
U.S. SUPREME COURT “Lays to Rest” Private Party Superfund Tort Suit —The Statute of Repose Awakens (at least in the Old North State) By John R. Embick, Esquire, Chair, Environmental Law Section
and sensors. CTS and a predecessor company operated a manufacturing plant near Asheville, NC (also known as the “Old North State”, or the “Tar Heel State”). The facility was sold in 1987. Residents in the area alleged that the groundwater in the vicinity was contaminated by plant operations, and that they suffered damages and injuries as a result. The residents claim the damage was first discovered in 2009, over twenty years after the sale.
Superfund contains a provision which partly pre-empts statutes of limitations in certain tort actions involving personal injury or property damage arising from the release of hazardous substances into the environment. 42 U.S.C. § 9658. CTS claimed that the Old North State Statute of Repose was not pre-empted by § 9658, and that the claims were barred. The federal trial court agreed, but the Fourth Circuit reversed, finding that the provisions of § 9658 were ambiguous and that the remedial purposes of Superfund favored pre-emption. The High Court reversed, finding that the provisions of § 9658 did not preempt the NC Statute of Repose.
At the core of Justice Kennedy’s opinion is a discussion of statutory interpretation and the pre-emption doctrine. Justice Kennedy opined that the outcome turned on whether § 9658 distinguished between statutes of limitation and statutes of repose. Justice Kennedy explained that the two doctrines, while sharing similarities, have different purposes and objectives. Statutes The residents brought various claims of limitations seek to balance the rights against CTS, including claims under and duties of litigants by encouraging the Superfund, seeking compensation for pursuit of claims in a “reasonable” amount he U.S. Supreme Court recently the damages and injuries caused by the of time, and begin to run when a claim issued an interesting ruling which groundwater contamination. CTS claimed, accrues. Statutes of Repose, on the other addressed whether state statute of among other things, that a Tar Heel State hand, reflect a legislative judgment that limitations and state statutes of repose Statute of Repose barred the claims after for certain acts, a defendant should be are pre-empted by the Comprehensive 10 years. Since CTS sold the plant in 1987, free of liability after a certain period of time passes, regardless of when a claim Environmental Response, Compensation, the claims arguably expired in 1997. accrues or is discovered (and the length of and Liability Act (“CERCLA”, or more time involved in most statutes of repose is popularly known as “Superfund”), 42 U.S.C. much longer, e.g., 10+ years). § 9601, et seq.
The case is captioned CTS Corp. v. Waldburger, et al., No. 13–339 (Decided June 9, 2014), and the main opinion was written by Justice Kennedy (joined in full, or in part, by Roberts, Scalia, Thomas, Alito, Kagan and Sotomayor). A dissent was penned by Justice Ginsburg (joined by Breyer). CTS Corp. (“CTS”), a publicly traded company on the New York Stock Exchange, is a manufacturer of electronic components
Court Day—Waldburger vs. CTS Corp (and the United States)
Justice Kennedy further indicated that the doctrine of equitable tolling of the statute of limitations helped discern the subtle differences between the two doctrines. He explained that the purpose of encouraging diligent prosecution of claims under the statute of limitations is not furthered when the plaintiff is prevented from discovering when the claim arises. Further, claims involving exposure to contaminants frequently are affected by very lengthy latency continued on page 25
www.chescobar.org continued from page 24 periods. Statutes of repose are not informed by this consideration, so that the equitable tolling doctrine does not apply. Having distinguished between the two concepts involving limitations periods, Justice Kennedy then turned to the actual language of § 9658. He found that the section mentioned statute of limitations multiple times, and did not mention statute of repose at all. He also concluded that the two doctrines were widely recognized as separate and distinct. Because Congress seemingly did not address the distinct doctrine of the statute of repose, he concluded that Congress did not intent to pre-empt those state statutory provisions.
the majority to distinguish the two limitations period doctrines. She also reasoned that because latency periods for the appearance of effects of exposure to contamination often are substantially longer that the periods set forth in statutes of repose, that the purpose for which § 9658 was enacted would be frustrated by the interpretation of the majority justices. What is the likely effect of the decision with respect to Pennsylvania’s Statute of Repose? The Commonwealth’s version of the statue of repose is found at 42 Pa. C.S.A § 5536, and seems to be limited to claims against builders, contractors, engineers and architects relating to the design, planning, supervision, or observation of construction of improvements to real property within 12 years after completion of the construction or improvement. As drafted, therefore, it appears that the PA Statute of Repose would not have prevented the claims raised by the Tar Heel State plaintiffs, had the site been located in the Keystone State.
Justice Ginsburg, in dissent, noted that she disagreed with the effort of
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Mary’s Country Corner The two walked the length of the entryway and out into the glaring sunlight of the parking lot. The full impact of her action was now dawning on her, but there was no turning back. She had heard of such “rescues” by some of the animal protectionist groups, but she had never even given it much thought. It was easy to find a ride home for the pony—many of her acquaintances routinely took a trailer along whenever they went to New Holland. By mid afternoon she was on her own property looking at the pony with a much more critical eye. The good news was that the animal was relatively young with no glaring physical or personality defects. The bad news was that its coat was dull; it was thin and its belly was distended, probably from malnutrition and worms. An even bigger problem was that she did almost all the work in her stable herself, to keep down her overhead. She specialized in training and teaching adults, for which she was well rewarded. A cast-off pony was really not in her program. By Mary Wade Myers, Esquire
go to a YMCA class on weekday mornings, partly for the exercise and partly for the camaraderie. I was sitting enjoying my after-class coffee when a member walked by wearing a sweatshirt embroidered with a beautiful horse. I admired it and she turned to my voice and smiled. Seeing my gym tote, which read, “Hug Your Lawyer...” she became more than casually friendly. One comment led to another and she was most curious to know if I was familiar with her divorce attorney. I spoke positively of her attorney and this delighted her. She got coffee and told me, to tell of her unique situation that had kept her from an uncomplicated marital decoupling. (Much later, I was acutely aware of why semi-retirement had ended my practice of family law.) However, one of her many tales particularly piqued my interest and began to share more details.
end pleasure horses. Some were show jumpers and hunters; some fox hunted and some were part of a riding or leasing program. She had a knack for finding the right horse for an individual rider’s needs. She often frequented auctions to obtain bargain horses that were sent to sale as owners went off to college, lost interest or gave up when the cost of upkeep became too much.
On one occasion her friend was wandering the aisle at the New Holland Auction complex. As she passed what some dubbed the “killer pen,” her eyes caught a large pony standing toward the front, surrounded by old sagging Amish work horses and mules. She took a quick glance at the pony and an irresistible urge made her loosen the lead secured around the pony’s middle. With no further consideration, she slipped the latch and snapped the lead on the worn As she told it, an equine friend of hers halter. That easily, hesitancy the pony was made her living dealing and training high- by her side and she simply closed the gating.
As my new Y acquaintance, Debbie, continued telling me her life’s history leading to the pending divorce, I skillfully turned her attention back to the pony story. She had gotten an urgent call from this friend, saying that she had located a new project for Debbie’s teenage daughters. Ever since they joined pony club as youngsters, the girls had periodically trained and improved ponies for resale, in order to make money. Debbie liked the idea of having the girls keep expense records on these animals in order to repay her from the sale proceeds. Although her economic situation certainly did not require such repayment (there was no such agreement on their personal show animals), Debbie wanted them to understand the cost of maintaining a horse or pony. They gained the financial responsibility of a business. Actually, the girls did well on their projects because they could provide the care and training at no cost and their show contacts gave them a lucrative market. As a pony won in the ring, its price tag went up until some adult just had to have the animal for their continued on page 27
www.chescobar.org continued from page 26 youngster. They put part of their profits aside for future college extras.The girls’ new project pony was delivered within an hour of the initial phone call to Debbie. When the girls arrived home from school and heard the news, they quickly changed, did their homework and headed to the barn. What they found did not make their day. They thought of a reason why this would not be a viable project. “It’s too tall.” There was a height restriction for an animal to be classed as a pony. A measuring stick on the withers revealed that it met the restriction by several centimeters. Later when they rode it, they found it to be ambitious enough and sensitive to their leg commands. Nine months later you would not recognize “Marty,” as they had finally named her. She had a sleek coat, her belly was gone; she was certainly not fat and she was well muscled. There was always competition between the girls; they were just over two years apart. Although neither was the superior horseman, the younger sister seemed to win more ribbons in the ring. It was mutually agreed that Marty would be shown by the younger sister. The girls began to campaign her on the show circuit—picking small local shows at first. By Spring she was ready to compete at Devon. She continued to collect ribbons and a steady following of youngsters, who flocked after her as she left the ring. As was their practice, the girls continued to raise the price tag as they gained success. However, this time there was pressure to sell because the older sister received a healthy scholarship and would soon attend a Virginia college with a strong riding program. The younger was not interested in going solo on more equine projects. She had her own horse to care for and, with school and activities that was enough. When a very generous offer was made for Marty, they accepted. Marty began to be shown successfully all around the country and has continued her career for years.
Chester County Court of Common Pleas
New Judge to be Elected in 2014 Pursuant to the provisions of Article VII, Sections 7(b) and (d) of the Chester County Bar Association Bylaws, the Judicial Evaluation Committee announces that any Chester County Bar Association member interested for consideration in the Plebiscite for the one (1) Chester County Common Pleas Court judicial position to be filled by election held in 2015 should submit his or her name, or the name of any other member(s) who has currently indicated in writing his or her availability for judicial office, to the committee. All submissions should be in writing, and mailed to the Judicial Evaluation Committee, Chester County Bar Association, 15 W. Gay Street, 2ⁿd Floor, West Chester, PA 19380. Submissions may be HAND DELIVERED to the same. All candidates must submit their names to the committee by 4:30 p.m. on Monday, September 15, 2014.
Patrick M. McKenna, Esq., Chairman Judicial Evaluation Committee
As noted above, submissions must be received in writing by 4:30 p.m. on Monday, September 15, 2014. All candidates who submit their names will immediately receive a Questionnaire and Authorization Form. The deadline to return the Questionnaire and Authorization Form is 4:30 p.m. on Tuesday, September 30, 2014.
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
For more details on all upcoming meetings and events, go to: www.chescobar.org/events
Save the Dates!
Oct. 9 –11
Fall Bench Bar Conference at Bedford Springs Resort
CCBF Country Casino Night at Penn Oaks Golf Club
The moral of this tale: You can get a second chance to make a first impression.
YOUR Bar Foundation
Bar Foundation Hits the Links
By Donald F., Kohler, Jr., Esquire President, Chester County Bar Foundation
hat do golf, beautiful weather and raising money for a great cause all have in common? They came together on May 19, 2014, the date of the Chester County Bar Foundation’s 14th Annual Golf Outing.
Once again, our outing returned to Hartefeld National in Avondale, PA. The weather was spectacular, the playing conditions could not have been better and the food and beverages were excellent. There were many happy golfers on the course that day. The feedback from the sponsors and golfers since the event has been overwhelmingly positive. If you did not get a chance to participate this year, make sure to keep your eyes open for when next year’s date is announced. You won’t want to miss it! The Golf Outing is a fun event, but more importantly, it raises the funds needed for the Bar Foundation to carry out its mission. The Foundation was created to facilitate legal education and to broaden access to the legal system for the residents of Chester County. Through our efforts, we support the following programs and organizations: The Charles E. Swope Scholarship, Law Related Education, The Access to Justice Program, Legal Aid of Southeastern Pennsylvania, The Crime Victims’ Center, and The Domestic Violence Center of Chester County. These beneficiaries of the Foundation use the funds they receive to improve the lives of Chester County residents. Our initial estimate is that we raised over $70,000 for the Foundation during the Annual Golf Outing—which is the 2ⁿd highest year we’ve had in the 14-year history of this outing! For the many of you who contributed to the success of our golf outing, we thank you. These fantastic results allow us to continue to build our endowment so that we can broaden the reach of our charitable efforts. We hope that you will continue to support the Foundation through our events and/or by becoming a Bar Foundation Fellow. I want to take a moment to thank Wendy Hoffman, Brian Nagle and the Bar Association staff for all of their hard work. Their tireless efforts made the event a great one. Also, I want to thank all of the sponsors that donated money and goods to help us reach our goal. On the right is a list of all of the sponsors, and I encourage you to patronize their businesses. Their generosity is the basis for our foundation’s success.
THE CHESTER COUNTY BAR FOUNDATION WOULD LIKE TO THANK OUR SPONSORS
Pro Shop SPonsor
THE CHESTER COUNTY BAR FOUNDATION WOULD LIKE TO THANK OUR SPONSORS
Foundation Sponsors Judges of Chester County
Tee Box Sponsors
Beverage Cart Sponsor Hall Law Offices, P.C.
Tips for Identifying
SOCIAL MEDIA EVIDENCE at the Beginning of a Case By Keith E. Boggess, Esquire
or those attorneys who have not yet heard the tolling of the bell, Social Media (or Social Networking) is now a part of the legal practice.
Social Media falls within the territory of The phases of the order are important. Electronically Stored Information and thus The lawyer must resist the temptation to is subject to Federal and State discovery pursue the Social Media after it has been rules. Consequently, establishing the proper identified without first preserving it. If evidentiary foundation becomes the map the preservation phase is skipped, then Their names are familiar—Facebook, to navigate that land. Also, Social Media’s the Social Media may disappear. Social Instagram, Wordpress, Twitter, Tumblr, use appears to be limited by a person’s Media is a moving target—it changes Google Plus, LinkedIn and many constantly. That elusive characteristic helps others. Some are blogs wherein practitioners know what steps should be entries can span pages (WordPress taken and when they should be taken. and Tumblr); others are micro-blogs limited to a small amount of This article presents several tips on the characters or media (Twitter and identifying phase. The suggestions are Instagram). Some are comprehengathered from a variety of sources and sive platforms wherein a person can other attorneys’ experiences and specifically just share cool stuff or can package focus on capturing information in the early a life and share it with the world stages of a case. (Facebook and Google Plus). While individual manifestations of Social Include a Social Media Section Media differ, all possess the characteristic reasonable expectation of privacy and by on the Intake that any kind of content—personal or the prohibition of fishing expeditions. The best time to start identifying the business, real or engineered—can be shared relevant Social Media is during the initial with the public or with a finite group. Knowing that factual predicates must consultation. Capturing Social Media be formed to use Social Media as evidence, information from the client is one of Opinions are divided on using Social however, does little to placate the trepi- the simplest and most effective means Media to market a legal practice, but a dation stemming from all the technology of finding it. What the client knows is lawyer’s use of Social Media as evidence mumbo-jumbo and from the intimidation the starting point—the beginning bricks stands on firmer ground. In Pennsylvania, of facing countless applications, programs, on the road of relevance to preserve and authenticated Facebook postings have been and services. The answer is that a lawyer discover Social Media evidence. On the accepted as non-hearsay impeachment should divide the goal of using Social intake form, the lawyer can have the clievidence. In other state courts, manipulat- Media into three phases—identifying ent list all the Social Media applications ing Social Media data has led to findings the Social Media involved, preserving it that they themselves use. Also, the client of evidentiary spoliation with a range of and discovering it. Specifically, when the should list the same information for the consequences. For example, a Virginia court client comes through the door even before opposing party and other important sanctioned both counsel and client when the case is taken, the lawyer should start people of the case to the best of his or her counsel advised client to clean up Facebook finding the Social Media relevant to the knowledge, including such information as postings. Also, some experts and writers case. Once found, he or she preserves the the software and applications used, E-mail argue that a lawyer may be breaching a duty potential evidence before doing anything addresses, usernames, handles, and even by ignoring such a treasure trove of personal else before it disappears or becomes un- phone numbers. In other words, get all information similar to the diaries of old. reachable. Once preserved, the lawyer the information you can that will help you pursues the evidence (discovery) to reveal figure out where to find the information. While Pennsylvania law addressing other evidence or to lay the proper founSocial Media as evidence is still evolving, it dation for use in court. continued on page 30 appears to be following other jurisdictions. New Matter
Tech Tips continued from page 29 With that basic information, a lawyer now has a way to target the appropriate Social Media and also has documents that show he or she was diligent in his or her duty to consider Social Media in the case.
Include Instructions to the Client on Social Media in the Initial Representation Letter
The lawyer may need to advise the client to do a Social Media hold in order to avoid any evidence spoliation issues. Evidence spoliation is the hiding, manipulation, or destruction of evidence. The act can be intentional or done out of negligence. A hold addresses that concern because the client suspends his or her participating with Social Media and of modifying, including deleting, any existing material. The hold would be in place until the lawyer examines the Social Media with the client and forms the appropriate strategy. The Social Media hold is best explained in the initial representation letter to the client. The language can be similar to the below example. In certain circumstances, Social Media, such as Facebook, Twitter, and Instagram, may be relevant to your case. If the situation warrants, I will ask you to do a “Social Media hold” until we discuss the details and facts carefully. Under the hold, I will ask you to stop posting or participating in all social media platforms until you and I have had a chance to discuss the matter in detail. Just as important, you must not delete or edit anything on your Social Media accounts. If you do, then you may be at risk for evidence spoliation, which could result in evidence being kept out of the case or sanctions. Related to that, Social Media from the opposing party or other witnesses may be used as evidence in court or can lead to evidence. Your cooperation is necessary to find relevant social media and to preserve it for future litigation or to use it to find additional evidence. All of your personal Social Media information will remain confidential.
Whether or not the client heeds the attorney’s advice is a different matter, but with the documentation that client was instructed to hold all Social Media activity, the lawyer has protected his or herself and has prepared critical groundwork.
Get the Client’s Written Consent to Examine Relevant Social Media
Once the question of what applications are involved has been answered, the lawyer can move further down the relevancy road and identify relevant content. One way is to have the client sign a written consent to examine the client’s Social Media accounts. The client may be fearful, however, of revealing his or her private world to even the attorney, so the client may need to be persuaded that the duty of confidentiality will protect them. To address privacy concerns as well as to protect all involved, a good practice would be for the lawyer to meet with the client and to have the client walk the attorney through the various sites and media, identifying and printing information as discovered.
Do a Preliminary Investigation
A quick look at what is out there can help shape the evidentiary contours. Of course, a lawyer should not do a full investigation. That should be left to an expert, who can investigate correctly and in a way so that the evidence is admissible and who can testify if needed. Also, there is a fine line between looking at public information and doing things in the Social Media world that can be construed as contacting the opposing side. A lawyer should be aware that some Social Media sites track who has viewed a profile. If an attorney logs in to LinkedIn, for example, and looks at a profile, the target person can see who viewed the profile. Looking at an expert witness’s profile to see if it matches a resume is one thing; looking at an opposing party’s professional profile, on the other hand, could be viewed as contacting them. But knowing the opposing party has a LinkedIn account is enough—preservation steps can be taken right away and the profile can be produced later in discovery. A lawyer should capture all results of the quick investigation. That way, some protection is provided if someone argues that the Social Media was ignored or mishandled. One way is to simply take screen shots and paste them in a document producing program such as Microsoft Word. Notes can be typed underneath each image, and then the document can be converted to a PDF.
Yes, a bell tolls for Social Media’s unavoidable presence in law—a bell signaling an arrival. It is present even in the evidence of a case. That bell ringing, however, can also sound the death of opportunity if a lawyer glosses over social networking in his or her case. Integrating the technology into the case is possible by breaking the tasks into discrete parts that follow the characteristics of Social Media. That way, the bell will not be tolling for thee.
From The Archives
From The Archives (â€ŠNew Matterâ€”December 1981)
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