theWRITS THE OFFICIAL PUBLICATION OF THE BUCKS COUNTY BAR ASSOCIATION
SPRING 2016
Spring Preview of:
Bucks County Farmers’ Markets Immigration: Fixing a Broken System An Italian Adventure: Part 2
contents
theWRITS THE OFFICIAL PUBLICATION OF THE BUCKS COUNTY BAR ASSOCIATION
CONTACT INFO
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President’s Message .......................................................................................... Page 4
President Grace M. Deon Vice President/President Elect David J. Truelove Secretary Jessica A. Pritchard
Immigration: Fixing a Broken System The current presidential election has brought to the public’s attention issues of what should be done about the estimated 12 to 15 million undocumented persons currently...
.......................................................................................... Page 6 Spring Preview of Bucks County Farmers’ Markets
Treasurer Robert T. Repko Editorial Staff Scott L. Feldman Writs Committee Susan Dardes Scott I. Fegley Dianne C. Magee Paul Perlstein Christopher J. Serpico David J. Truelove Bar Association Office Deanna Mindler, Executive Director 135 East State Street Doylestown, PA 18901 215.348.9413 www.bucksbar.org
Even though farm acreage continues to decline in Bucks County, we are fortunate to be blessed with...
.......................................................................................... Page 9 Pennsylvania Dutch Farmer’s Market: Newtown, Pennsylvania Lower Bucks County residents do not have to drive to Lancaster for an authentic Amish culinary experience...
e....................................................................................... Page 12 An Italian Adventure, Part 2: Florence & Pisa The Flaneur is an urban explorer, a connoisseur of the streets. Anyone can merely walk the avenues...
........................................................................................ Page 14 Eight Generations on the Farm Writs Editor Scott Feldman called a few weeks ago to inform me that the next edition would focus on local Bucks County farmers markets, and since he...
........................................................................................ Page 20 Let’s Get Acquainted, Shall We? It’s a job to look for a job!
email submissions to deannam@bucksbar.org
Lawyers of all ages to need to know interview skills, be they for job interviews, client meetings...
........................................................................................ Page 24 PUBLISHER Hoffmann Publishing Group, Inc. 2921 Windmill Road Reading, PA 19608 610.685.0914 x201 HoffPubs.com
(Re)Defining Copyright Fair Use In ways the legal world is still struggling to comprehend, the Internet has and continues to play an influential role in defining modern and future copyright law...
........................................................................................ Page 28 Also in This Issue:
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• Pennsylvania Bar Association Convention • 2016 Mock Trial Competition Recap • An Easy Way to Support Legal Aid • Judge Alan M. Rubenstein • We Are: BCBF! • Tech Tips From a Recovering Geek • Music Snob’s Top 5 List The written and visual contents of this magazine are protected by copyright. Reproduction of print or digital articles without written permission from Hoffmann Publishing Group, Inc., and/or the Bucks County Bar Association is forbidden. The placement of paid advertisement does not imply endorsements by Bucks County Bar Association.
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President’s Message
parody competition held at the reception. Well done! This is just one example of how our BCBA members balance their busy professional and personal lives while giving back to our community. Many thanks also to Breandan Nemac and Emma Kline for organizing yet another successful mock trial competition.
Dear BCBA Members: In just one month my daughter, Aubrey, will have completed her freshman year of college (Ray Bucknell to alums Larry Scheetz and John Trainer and Bison parents Maureen and Chris Serpico). Until Grace Deon this moment I had no idea how Bucks County Bar much I would miss cheering at field Association President hockey and lacrosse games (even in rain and frigid temperatures), hosting pasta parties for the team members the night before away games, attending student executive board fundraisers and the list goes on.
For those of you who – in addition to practicing law – work with our youth, serve on a municipal or nonprofit board or committee, your time and efforts are meaningful and essential. The BCBA wants to hear about your activities in the community so that we can highlight and acknowledge the efforts of our members. So please take the time, if you have not already done so, to let me know about your participation in such worthy causes.
Each year I would anxiously await receipt of the lacrosse playoff schedule because inevitably there would be a game slated for the same day as Aubrey’s piano recital. Somehow we would manage to whisk her off of the field and deliver her to the James-Lorah House just in time for her performance. In the audience I would join fellow BCBA members (Michele and Mike Frisbie, Kim Litzke, Jeff Williams and Susan Smith), as we eagerly awaited the performance of the songs our devoted pianists practiced for months up until the big moment.
• Visit by the Commonwealth Court Bench to Doylestown where a select appellate panel will sit at the Justice Center on May 13th at 9:00 a.m. followed by an Appellate Law-based CLE presentation at the BCBA Building from 1:00-2:00 p.m.
In addition to the many CLEs and meetings of our divisions, sections and committees, please note the following happenings at the BCBA in the upcoming months:
• Federal Courts Reception – June 8, 2016 • BCBA Annual Senior vs. Young Lawyers Softball game – June 16, 2016 • Bucks County Bar Foundation Golf Outing at Jericho National – June 27, 2016 • Formal dedication of the refurbished fountain at the BCBA building, that was originally erected in the early 1870s in the east yard of the 1812 Courthouse (summer date, yet to be determined)
“For those of you who –– in addition to practicing law –– work with our youth, serve on a municipal or nonprofit board or committee, your time and efforts are meaningful and essential.”
• The Bench Bar Committee, co-chaired by Sean Gresh and Dan Keane, is hard at work planning a great conference for our members which will be held at Crystal Springs on September 23-25, 2016. Musical entertainment on Friday evening will feature a special group of local jurists.
Over the past year, I have viewed the many posts on social media by friends, family and colleagues sharing their treasured moments. I particularly enjoy viewing posts by our BCBA members who are active outside of the court room enjoying the activities of their children and grandchildren, as well as devoting countless hours to community and nonprofit endeavors.
Should you have any questions about BCBA activities or have any new ideas that would benefit our members, I invite you to contact me. I wish you and your families a restful and safe summer.
Take for instance my law partner, Kim Litzke, who has for many years coached her daughters’ soccer teams. In addition, she, along with John Shaffer and Tara Brouda, coached her daughter, Alexis, and fellow members of the Central Bucks South Varsity Mock Trial Team. The team catapulted all the way to the state finals, an honor bestowed upon only 14 of the 317 teams that compete throughout the Commonwealth. This bright group of future lawyers also managed to capture first place in the song theWRITS
We Welcome Your Feedback! Thanks for your interest in theWRITS. Please send all comments, questions, submissions to: BCBAWrits@yahoo.com.
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From the Editor...
Going back even further, The Thin Blue Line was a 1988 award-winning theatrical release that told the true story of a Dallas police officer’s violent murder in 1976 and the subsequent rush to judgment resulting in the wrongful conviction of 28-year-old Randall Adams. Mr. Adams was clearly in the wrong place at the wrong time, having accepted a ride from the actual murderer (in a stolen car) after his own car ran out of gas. The filmmaker’s extensive research and investigation ultimately led to Mr. Adams’ release in 1989.
A hopeful project by wannabe documentarians, one of whom was a lawyer, became a ten-hour series, which became the latest Netflix binge watch phenomenon, which became its own cottage industry.
So Making a Murderer had some tough acts to follow. But even as Messrs. Avery and Dassey remain in prison, others have clearly benefitted. Steven Avery’s new attorney, Kathleen Zellner, while aggressively pursuing all legal avenues, is hardly press-shy. She has granted numerous interviews, with some occasional controversy. Newsweek magazine suggests that Jessica Biel could play her in a movie. And Strang and Buiting have added a series of European dates to their speaking tour. In addition, Dean Strang will host his own “docuseries,” in which he will “point out flaws in America’s criminal justice system.”
Making a Murderer tells the stranger than fiction story of Stephen Avery, who was convicted of a brutal assault he did not commit. He was fully exonerated after serving eighteen years in prison. Within two years of his release, however, he, along with his then-16-year-old nephew, Brendan Dassey, were charged – and convicted – of a murder for which he again asserts his innocence. Among the bad guys in this retelling are the Manitowic County, Michigan District Attorney’s office and Sheriff’s Department. Among the good guys are Avery’s defense lawyers, Dean Strang and Jerry Buiting, who are currently in the midst of a 26-city, 32-night speaking tour entitled “A Conversation on Justice.” Locally, tickets for each of their two nights at the Keswick Theater (night one sold out!) ranged from $39.50 to $59.50.
And, yes, there will almost certainly be a second documentary about the Avery/Dassey case and its ongoing developments. In which case, I will be right there watching!
-Scott L. Feldman
Need a Lawyer?
I have always been a sucker for a good true crime story. Just last year, the riveting multi-part documentary The Jinx: The Life and Deaths of Robert Durst debuted on HBO. Mr. Durst’s saga continues to unfold, with his next murder trial scheduled shortly in Los Angeles. Perhaps the most compelling effort – prior to MaM – is the documentary regarding the 1993 “West Memphis Three” murders, Paradise Lost: The Child Murders at Robin Hood Hills. This 1996 documentary also originally debuted on HBO and spawned two sequels. By the time of its third iteration in 2011, the three defendants were released from prison after 17 years owing to widespread support generated from the series. Advocates included Johnny Depp, Eddie Vedder, and Peter Jackson. The documentarians raised numerous questions as to the evidence and motives of the prosecution, not least of which was its decision to portray Defendant Damien Echols (18 at the time of his arrest, with some interest in the Wicca religion), as being a “devil worshipper.” The series was a unique blend of investigative reporting, advocacy and social justice, a blueprint later followed by MaM.
Welcome to the Bucks County Bar Association’s Lawyer Referral and Information Service (LRIS) serving all of Bucks County. The LRIS is a public service of the non-profit Bucks County Bar Association. Each year the LRIS responds to thousands of callers, referring them to attorneys with experience in the appropriate area of law or to area agencies able to provide assistance. Persons identified as needing legal representation and who do not claim inability to pay an attorney will be referred by LRIS to a participating attorney. LRIS participation is open to all Bucks County Bar Association members having their primary office in Bucks County. You can contact the LRIS at 215-348-9413.
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Fixing a Broken System... – By – Marcia Binder Ibrahim
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The current presidential election has brought to the public’s attention issues of what should be done about the estimated 12 to 15 million undocumented persons currently living in the United States. These people are your neighbors, friends, your children’s playmates, and the owners of your favorite restaurants, dry cleaners and other establishments. They are intimately and integrally involved in our daily lives. In Pennsylvania alone there are estimated to be approximately 180,000 undocumented persons.
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President Obama has employed executive action during his presidency in an attempt to reform immigration, but his policies have been unable to fundamentally change the immigration landscape as the litigation over his attempt to expand existing programs demonstrates. In June 2012, President Obama implemented Deferred Action for Childhood Arrivals (DACA), which offered work permits to certain undocumented youth and young adults. These are the so-called “Dreamers.” In March 2013, President Obama also enacted the provisional unlawful presence waiver program through executive action. This process provides relief to a small number of undocumented persons who are unlawfully present in the United States, usually because they entered without documentation. If they are able to show that a three or ten year bar to their reentry would cause extreme hardship to their United States citizen spouse or parent, they can apply for a waiver of the bar. However, the “extreme hardship” threshold is difficult to meet, and the relief is not available for those undocumented persons not married to United States citizens but who have United States citizen children. Both of these executive action policies are in jeopardy, depending upon who is elected as the next President.
ecause of a 1997 law passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), still in effect today, millions of undocumented persons are stuck in this country and face disincentives to depart and attempt to reenter lawfully. That is because under IIRIRA undocumented persons risk being barred from returning to the United States for three or ten years as a sanction for their original unlawful entry. Now millions of undocumented persons with United States citizen families, who would otherwise be eligible for lawful visas to the United States, risk the imposition of the bar if they attempt to return home to secure those visas. When I started practicing immigration law thirty-five years ago, this law did not exist, and undocumented persons could freely travel back to their home countries and apply for visas to return legally and join their families, thus taking them out of the shadows. The result of the passage of IIRIRA has been a large and growing population of undocumented persons who have resided in the United States for extended periods of time without an opportunity to become documented, and without an incentive to return to their home country.
“The 12 to 15 million undocumented people already present in the United States pose both a challenge and an opportunity.”
Due to the previous laxity of our border policy these undocumented persons often have United States citizen children, spouses, and families, emotionally and financially dependent upon them. Often, undocumented persons are the main or even the sole breadwinner in their family, allowing a United States citizen spouse to remain home and care for the couple’s children. The income earned by an undocumented individual could mean the difference between a family’s self-reliance, and partial or full dependence upon governmental welfare programs. Despite having lived in the United States for many years with their United States citizen relatives, many undocumented persons are forced to stay here and await immigration reform (perhaps never to occur) to legalize their status because of the IIRIRA three and ten year bars. Most undocumented people are law abiding, hardworking individuals, who are now stuck in the United States because they may have entered without documentation or even overstayed their period of authorized time, thus forcing them to stay in an undocumented status. Congress has not yet figured out a sustainable fix for this immigration morass.
The 12 to 15 million undocumented people already present in the United States pose both a challenge and an opportunity. Many states, dismayed by the growing numbers of undocumented persons within their borders, have enacted legislation denying driver’s licenses to anyone who cannot prove they are in the country legally. Pennsylvania has enacted such a policy. Though perhaps reasonable in theory, the consequence has not been a decrease in undocumented persons driving, but an increase in uninsured and unlicensed drivers in Pennsylvania. Undocumented persons have difficulty securing insurance because of their lack of status, thus leading to more uninsured motor vehicles and drivers on our roadways. Undocumented taxpayers contributed $11.84 billion in taxes in 2012 alone and, contrary to popular myth, around half of undocumented persons pay federal income taxes1
Most of these 12 to 15 million persons want to become documented, legal and productive members of our society. If that is accomplished, they will become taxpayers contribut7
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feature ing to both the Social Security fund and the Treasury of the United States through the payment of income, employment and other types of taxes. They will become eligible to buy health insurance through the marketplace, thus decreasing their reliance on emergency rooms and other expensive medical interventions.
their status that would enrich the depleted coffers of our federal government. Further, our failure to provide a legal pathway to normalized status means that undocumented persons remain in the shadows, and those persons with criminal or security issues are less easily identified and present more of a danger to our society as a whole.
Despite rhetoric from some presidential candidates to the contrary, it is obvious that large scale deportation of such a vast number of people is not feasible. Many Americans, conscious of their own immigrant roots, and mindful of our nation’s praiseworthy history of welcoming immigrants, do not support mass deportation. Rather, as a nation of laws, committed to just and fair treatment of immigrants, most Americans would like to see the current immigration laws reformed. According to the Public Religion Research Institute’s 2015 American Values Atlas, nearly four out of five Americans support policies that would allow undocumented immigrants to remain in the United States.
Many in Congress, like many Americans, fundamentally disagree with “rewarding” those who broke our laws by entering and crossing our borders unlawfully. But unless and until significant reform is achieved, the 12 to 15 million undocumented persons who live and work in your community will increase to millions more, trapped, unable to leave and unable to legally come out of the shadows. This would constitute a massive failure by our elected representatives to solve one of the great problems of this generation.
“Many Americans, conscious of their own immigrant roots, and mindful of our nation’s history of welcoming immigrants, do not support mass deportation.”
It is estimated that legalizing these 12 to 15 million people would result in an increase in Gross Domestic Product (GDP) between the years 2013 and 2020 of $832 billion. Pennsylvania specifically would add $12,349 per undocumented immigrant to the Gross State Product (GSP) by 2020, and by 2045, would add $6.4 billion to the GSP and increase personal income by more than $6.3 billion.2 In addition, a penalty fee could be charged to anyone seeking to legalize
Footnotes Gardner, Matthew, Johnson, Sebastian, and Wiehe, Meg. “Undocumented Immigrants’ State and Local Tax Contributions,” April 2015. Institute on Taxation and Economic Policy, www.itep.org. 1
2 Economic Effects of Key Components of Immigration Reform: Pathway to Legal Status in Pennsylvania.” www.remi.com/immigration-report
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F armers ’ Markets
Spring Preview of Bucks County Farmers’ Markets Even though farm acreage continues to decline in Bucks County, we are fortunate to be blessed with an abundance and everincreasing number of outdoor farmers’ markets offering healthy, locally raised products. Sadly, however, none of those markets opened for the 2016 season before the deadline for this issue of The Writs...
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– By – Diane Magee
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Spring Preview of Bucks County Farmers’ Markets In anticipation of opportunities to visit these markets in warmer weather, here’s some preliminary information gleaned from the Internet and the cobwebs of my mind to help you find and explore the markets when they do open. I discovered the following eight community markets in Bucks County (and note that there are many more in neighboring counties and across the river in New Jersey):
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Indian Valley Farmers Market at The Marketplace at Telford Station, Penn Avenue and Main Street in Telford may or may not be in Bucks County since Telford Borough is divided between Bucks and Montgomery Counties, and I haven’t checked its location to the county border. Either way, it’s close enough to include here. This market is a Producer Only market, meaning that only the grower, baker or crafter may offer products for sale. It’s open on Saturdays from 8:30 a.m. to 12:30 p.m. from June through October and features hand-made crafts, free kids’ crafts, local, farm fresh food, baked goods, local honey, and coffee. Among other vendors, Jaye’s Barkery, and Brewscuits sound interesting.
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The Doylestown Farmers’ Market has been sponsored by the Buckingham Township Civic Association since 1975 and operates this year each Saturday, with the exception of the weekend of the Doylestown Arts Festival, from April 16 to mid-November from 7:00 a.m. to noon. It’s located on Hamilton Street, between State Street and Oakland Avenue and packs over 35 vendors into that relatively small space. You may treat yourself to tantalizing baked goods, homemade jams, local beef, chicken, eggs and cheese, plants, both vegetables and flowering annuals, for your garden, and treats for your pets. As a customer and stroller of this market for many years, I can personally vouch for the quality of the local honey, pepper jelly, and a vast array of budding plants. Plus, it’s a great way to spend Saturday morning with your friends and neighbors. I’ve always run into someone I know each of the many times I’ve visited the market.
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F armers ’ Markets Lower Makefield Farmers’ Market is
another weekday market, opening in May every Thursday from 3:30 to 6:30 p.m. It was founded in 2007 and takes place in Veterans Square Park at Edgewood and Heacock Roads. It’s populated with farmers, food trucks and other unique vendors, such as Giggling Goat Diary, Mediterranean Delicacies, Two Sisters Canning, Pickle Licious, and Neil’s Sharpening Service.
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Perkasie Farmers’ Market, opens on Saturday mornings, from 9:00 to noon, beginning June 4 and running until October, at the corner of 7th and Market Streets. Warning: major construction is taking place in this area this year, as Perkasie Borough strives to transform its downtown into a modern village, but the website claims that the market will be here nonetheless. Although it has not yet opened this year, this market was the 2016 winner in the Farmers Market category of Bucks Happening magazine’s “Best in Bucks” contest. You may buy certified organic produce, eggs, meat, honey, breads, coffee, sweet treats, flowers, plants, and crafts at this market.
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Langhorne Farmers Market, found at the Jesse Soby American Legion Post, 115 West Richardson Avenue in Langhorne, operates rain or shine every other Tuesday afternoon, starting June 2, from 3:00 to 6:30. Offerings at this market include fresh local produce (of course), organic coffee, soaps, fresh bread and cookies, jams and preserves, and, for something different, tomato pies.
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Pennsylvania Dutch Farmer’s Market:
– By – Scott Fegley
Newtown, Pennsylvania
Lower Bucks County residents do not have to drive to Lancaster for an authentic Amish culinary experience. The Pennsylvania Dutch Farmer’s Market located in the Village at Newtown South, 2150 South Eagle Road, in Newtown, PA is a delight for the senses.
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ven as I approached the front door on a recent visit, wonderful odors of baking breads and roasting meats rushed out to greet me. The market is arranged in the traditional shape of a large rectangle with shops on both sides of a central aisle. The market features shops with traditional Pennsylvania Dutch fare, a deli with choice cuts of meats, sausage and poultry, shops with dairy and cheese products, fresh fruits and vegetables, and a shop offering specialty homemade sauces and relishes. I was also pleasantly surprised to see shops offering foods I do not usually associate with “Pennsylvania Dutch.” There is a sushi bar, a Mexican deli, and a seafood shop with filets so fresh they must have been flown in from the docks that morning. There is seating in two different areas of the market for those who don’t want to wait until they get home or back to the office to savor the taste of exceptional food. Since I went there to experience Pennsylvania Dutch foods, I tried a barbecued pork sandwich with glazed carrots. They went down nicely with birch beer. The pork sauce was on the sweet side, not overpowering. I finished my lunch with some shoo-fly pie and bought a bag of cherry licorice bites to go. The Farmer’s Market is open only on Thursdays from 9 to 6, Fridays 9 to 7 and Saturdays 9 to 4. The Market also has pig roasts in the parking lot during the summer. Newtown has much to offer in the way of shopping and things to do in addition to the Farmer’s Market. But if you’re going to spend a Saturday in Newtown, be sure to stop by the Pennsylvania Dutch Farmer’s Market to eat in or take out some culinary treasures your entire family will enjoy. For more information on the Pennsylvania Dutch Farmers Market in Newtown, Pennsylvania, visit them on the web at www.newtownfarmersmarket.com.
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BCBA events
Pennsylvania
Bar Association C o n v e n t i o n
The Bucks County Mediation and Arbitration Center (BCMAC) is owned and operated by Barbara N. Lyons, Esq. She is certified, skilled and experienced in neutral arbitration, mediation and case evaluation. Attorneys work closely with Barbara from initial contact to the conclusion of their case. BCMAC is a full-service ADR provider addressing issues involving, but not limited to: • Contract and real estate disputes • Medical malpractice • Equity matters • Employer/employee disputes • Underinsured and uninsured motorist cases • Business mergers and dissolutions • Personal injury • Municipal matters BCMAC provides cost-effective and real-world solutions to attorneys, consumers, business and industry professionals, employees, employers and government agencies.
For more information, call (215) 340-7655 or visit www.bcmac.org. Bucks County Mediation and Arbitration Center The Farm, 220 Farm Lane, Doylestown, PA 18901
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An Italian Adventure
– By – Paul Perlstein
Part 2: Florence & Pisa The Flaneur is an urban explorer, a connoisseur of the streets. Anyone can merely walk the avenues and boulevards of an urban landscape. But flanerie has been described by Honre’ de Balzac as “gastronomy of the eye.” To Victor Fournel, it is “a unique way of understanding the rich variety of the city landscape. It is a moving photograph of the urban experience.” The great French poet Charles Baudelaire likened the Flaneur to “a botanist of the sidewalk.” And in our own culture Cornelia Otis Skinner has described the Flaneur as the “deliberately aimless pedestrian, unencumbered by any obligation or sense of urgency…[who] wastes nothing, including his time, which he spends with the leisurely discrimination of the gourmet, savoring the multiple layers of the city.”
To our mutual delight, on our first trip together many years ago, my wife and I discovered that we both felt that flanerie was the best way to see and experience a city. Each urban environment has its own current, and once found it will sweep the Flaneur to the hidden flora and fauna that will delight all of the senses, with stops at the pools, banks and coves that can never otherwise be discovered. This is how we have enjoyed many urban landscapes, including Venezia. And now it was time to flanerie in Firenze.
/ The Leaning Tower of Pisa and Cathedral. theWRITS
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We had been to Florence twice before on day trips and found it beautiful and great fun. This time we were going to spend a week in a luxury flat, the prize we won that brought us to Italy. Unfortunately, we didn’t drop our over-packed bags in the Venetian canals and so we dragged them to where we could get the waterbus to the train station. After man (and woman) handling our suitcases on and off the vaporetto, into the train station and onto our car where having booked first class paid off with room for the bags on the crowded train, we relaxed and enjoyed the two hours or so through the Tuscan countryside to Florence.
When we arrived in Florence, the weather was even more glorious than we had experienced in Venice. Showing the cabdriver a piece of paper with the address of our apartment, he knew exactly where to go. The palazzo where we were staying was around the corner from the Piazza Santa Croce, not far from the station. Nonetheless, any cab ride in Italy is an experience that should require crash helmets: fast turns down very narrow streets, sudden braking for pedestrians and cars that appear from nowhere, frequent stops at which one expects knives or guns to come out to avenge the honor of our driver who felt himself insulted by every one who made him brake.
dence either of us had ever seen. Architectural Digest would have been impressed. A masterwork of Italian design, it beautifully blended modernity and antiquity. The floors were marble and wood. The walls were stuccoed and painted. The ceilings had murals on them. The artwork was both classical and modern. There were two bathrooms, a living room, an office/sitting room, a large eat-in kitchen with a pretty balcony that overlooked a charming courtyard, and a huge bedroom. Needless to say, we spent the next seven days in absolute comfort. Being experienced with apartment rentals in foreign cities, we quickly made ourselves at home by finding the local market and stocking up on staples such as eggs, coffee, and cream. I came back each morning from getting bread and pastries to my wife’s wonderful coffee and breakfast. But we were here to flanerie in Florence and that we did, all day and well into the evenings.
The art in Florence is so abundant and so moving that it is impossible to believe that man created it. At the
/ Boboli Gardens in Florence.
On a tiny street we found a huge solid door with the building number next to it. A call to the landlady brought her down and she ushered us inside. The entryway was sleek and modern. The lift was too small for all three of us with our bags. Since the apartment was only one flight up a wide circular marble staircase, I gallantly let Mrs. P get on the elevator while I foolishly decided to drag my bag up the stairs. Half a heart attack later, I met them. The landlady opened the door and we entered the most visually stunning resi-
/ The terrace of the apartment. 15
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feature Academia, Michelangelo’s David is the most wondrous thing, beyond imagination. We can stare at it for hours, sometimes breathless, sometimes crying. In the Uffizi gallery one can spend a day, a week, or a lifetime. There one takes in the beauty of Titian’s Venus, Botticelli’s Birth of Venus, da Vinci’s Annunciation, and literally thousands more works of art that are just as spectacular. And this is just one of many museums. I refer you to the guidebooks to learn what we saw and you have to look forward to.
proprietor was so talented that he made us wish we could regularly return. Great hair days lasted us the remainder of our trip, and beyond. Florence has an abundance of art and gold and there is shopping everywhere, especially for leather goods. Indeed, after settling in our apartment, the first thing my wife did was go shopping for a new leather jacket. Finding things she liked was not hard. She bought two. Fret not for me, however. I, too, came home with some very stylish things that were unique. While corporate retailers are as abundant in Florence as they are in the King of Prussia mall, there are still dozens of local artisans and small shop owners who have one-off items that will never be seen anywhere else.
Florence is very compact. It is easy to walk from the Piazza Santa Croce to the Uffizi, the Duomo, the Academia, the Leonardo Museum, the Galileo Museum, the Strozzi Palace and the Ponte Vecchio. The streets of Florence teem with an abundant palette of humanity. The street performers on the Ponte Vecchio never fail to entertain, as does the window shopping of the gold merchants whose stores flank each side of the bridge. Across the Ponte Vecchio one can walk to the Boboli Gardens and the Pitti Palace. It was across from here that we discovered a salon whose
Florence is located in the heart of the Tuscan breadbasket and the food is excellent. Highlights are the sandwiches, ubiquitous pizza, and the meat and cheeses and olives that make for great picnic lunches. For dinner, bistecca fiorentina is a huge thick T-bone never less than a kilo (2.2 lbs) served very rare. No one, not even the fattest / The apartment. tourist, eats it by himself. And always get the vino del casa. It is cheaper than the other wines on the list and we have never been disappointed. Florence has a huge students abroad population and there is an abundance of good cheap international cuisine restaurants that cater to them. One of our gastronomic highlights was just such a place, El Chico. Here we enjoyed one of the best burritos we ever ate. We dined al fresco, sharing a table with students from all over the world. They were incredibly interesting dinner companions. We never ate so much for so little. But there we stick with the beers and don’t order the wine.
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/ The apartment.
/ The Piazza dei Miracole.
but also a fun, pleasant walk. Shops abound. And then, suddenly, seen above the rooftops and through the canyons of the streets, there it is – the tower! The cathedralbaptistery-tower complex of Piazza del Duomo, known collectively as the Piazza dei Miracoli (Square of Miracles,) is not only one of the most dramatic settings in Italy, it was to us the second (after the Eifel Tower) most iconic monument we had ever seen. We are glad that we lingered at length, enjoying a cappuccino and biscotti as we absorbed the sheer wonderfulness of it all.
When in Florence, one cannot miss Pisa and we didn’t. Getting there was easy. Unencumbered by suitcases, we could walk to the train station and used the ticket machines to get discount first class tickets. Once arrived in Pisa, the tower is only a few kilometers from the train station and like most everywhere in Italy, is not only an easy
Florence and its Tuscan environs can easily encompass an entire trip to Italy and whether you stay a few days or a few weeks, it’s not enough. But at the end of seven days our Florentine idyll came to an end and Rome awaited.
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community
Following the preliminary round, there were four undefeated teams which advanced to the playoff stage: Central Bucks South Team 1, Central Bucks East, Central Bucks South Team 2, and Central Bucks West. Congratulations to the Central Bucks School District and the performance of all four teams entered in this year’s competition – whatever you put in the water system this year certainly worked! Following the final which was presided over by The Honorable Cynthia M. Rufe, District Judge for the United States District Court for the Eastern District of Pennsylvania, the jury returned a verdict in favor of the Defendant, Central Bucks South Team 1. The Plaintiff, Central Bucks South Team 2, was narrowly defeated after a well argued trial. I am proud to report that our local winner then went on to prevail at the Regional Competition which was held in March. Central Bucks South earned the right to compete in the statewide competition held in Harrisburg in April. The team continued to make the County proud by going 1-1 in Harrisburg, with the loss being a very narrow defeat to the eventual repeating state championship team, Quigley Catholic High School of Beaver County.
2016 Mock Trial Competition Recap
On behalf of our county’s Young Lawyer’s Division, I would like to thank all of the Judges and attorneys (serving as jurors and bailiffs) who volunteered precious evenings to make the competition the most fulfilling it can be for the students. The competition would not otherwise be possible. I would also like to thank Sherri Wohrle, Chris Daley and everyone else at the Justice Center that made it possible for the competition to be held in the new courthouse this year.
– By Breandan Q. Nemec – The 2015-2016 State Mock Trial Competition recently concluded and was a great success! The competition, which is organized each year by the Young Lawyers Division of the Pennsylvania Bar Association, was held the last several months culminating in the state competition held in Harrisburg the weekend of April 1st-3rd.
Congratulations again to all of the students, teacher-coaches, and attorney advisors who participated in the competition this year. The future of the Bucks County Bar certainly looks promising with all of the young students interested in the law!
The competition began locally at the district level in which thirteen Bucks County high school and middle school teams competed. Each school competed in two trials, alternately representing the Plaintiff and Defendant, in a civil declaratory action filed by an insurance company against its insured following the settlement of a personal injury claim brought by a 3rd party. The students did an incredible job with an extremely difficult fact pattern that would have been complicated even for a seasoned trial attorney!
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BCBA events
BCBA Opening - of Assizes
1.
1. BCBA Members enjoying the evening. 2. CLE, presented by the Bucks County Court of Common Plea Judges. 3. BCBA President Grace Deon with “Frankie.”
2.
3.
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SPRING 2016
feature Writs Editor Scott Feldman called a few weeks ago to inform me that the next edition would focus on local Bucks County farmers markets, and since he recently learned that I lived on a farm, he asked if I would be interested in writing an article about my life as a “gentleman farmer.” While many would question whether I meet the definition of a “gentleman,” I am absolutely certain that I do not meet the IRS definition of a “farmer.” However, that was not the case on both sides of my family just two generations ago, so let me tell you the tale of one country lawyer’s family farm and heritage.
The current house on my farm was built with brick in 1888 and replaced the original fieldstone residence. (I am told brick was a status symbol at that time.) According to my grandfather’s records, the brick was made at a local brickworks in Doylestown and delivered by many horse and wagon trips to our property, which is five miles north in Plumstead. The masons who built the house were from the Souderton area, and they would travel each week to work on the farmhouse while sleeping weeknights in the barn, which was built earlier in 1873. They then returned home by horse for the weekend with their families.
The Trauger (Dracker in Germany) and Hunsberger (Hunsperger in Switzerland ) families each managed to make their way across the Atlantic to Upper Bucks County in the early to mid-1700s. Both families likely came here as a result of Pennsylvania’s efforts to actively recruit farmers from Europe to come and help grow and expand the Commonwealth’s fledgling agrarian economy. Our family farm, which is now my home and residence, was originally acquired by my mother’s side of the family in 1798 for the stated deed sum of “1000 pounds.” In 2001, my family and I moved to the farm in Plumstead Township and became the 8th generation to reside following only the 5th deed transfer over that period.
“The farmhouse, like many built at that time, was a multigenerational housing structure housing two generations of family members that lived and worked together on the farm.”
Eight Generations -on the-
Farm
– By – Jeffrey G. Trauger
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From 1909 through 1959 the farm operation was focused on the breeding of Holstein-Freisians (the black and white cows for you town dwellers ). While my great grandfather, Harvey Hunsberger, was attending to various outside interests (Eastern States feed dealer and Sheriff of Bucks County) my grandfather, George, worked on the farm with his older brother, Willis, and helped develop the herd, dairy, and breeding businesses. The farm became known as Belle Crest farm, and this name served as the prefix for all cows and bulls bred and sold throughout the country as the breeders registered their animals with the National Association. Belle Crest farm also bred a number of state champion cows that produced many more pounds of milk with a higher butterfat content than their contemporaries. A 1941 article from the Intelligencer was titled “Belle Crest Farm Cows Sold at Fancy Prices“and confirmed the sale of a herd sire bull named “Dean of the Pearls” for the then-record sum of $2,100. The Belle Crest breeding business ended, however, with the advent of AI (not “intelligence” but instead “insemination”). During this time period, my grandfather also had a huckster route to the Main Line and other areas – selling farm fresh milk, meats, and other dairy products to the city and town folk.
The farmhouse, like many built at that time, was a multigenerational housing structure housing two generations of family members that lived and worked together on the farm. Over the years, the barn also had several additions. Barn experts can tell the nationalities of the early farmers of Bucks County just by looking at the manner of construction. Experts identify ours as a Germanic bank barn with hand hewn timber framing techniques and construction design unique to southern Germany.
“As a boy, I was fortunate to grow up next to the farm and spend much time there.”
Regarding “good deeds,” when our family moved back to the farm, my grandmother handed me a box that she kept in her safe. In it were most of the original deeds to the property including those that predated 1798. After doing some research, I learned that in the pre-recording era, when a property was transferred, the grantor would provide all deeds to the grantee who would retain those deeds thereby proving their ownership through the chain of title. Some of those original deeds were done on sheepskin with red wax seals accompanying the grantor’s signatures and were also signed and witnessed by the local justice. Two of these deeds, 1774 and 1776, were particularly beautiful due to the artistry of the scriveners with nothing more than black ink. I had them framed and placed under protective glass, and they are now on display in our farmhouse. The deeds show that my ancestors were neighbors to the Doan family, infamous Bucks County outlaws. For those that do not know, the Doans were Tories and horse thieves; their largest heist was a robbery of the gold from the Bucks County treasury.
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SPRING 2016
feature While both of my grandfathers grew up working on their family farms, my parents’ generation left farming as their livelihoods. Belle Crest farm is now farmed by a local dairy farmer in Bedminster who raises feed crops of primarily corn and soybeans to reduce his winter feed costs for his herd of approximately 80 -100 dairy cows. As a boy, I was fortunate to grow up next to the farm and spend much time there climbing the silo, building tunnels in the hay stored in the barn, and hunting in the adjacent woods with my father. I may be one of the few BCBA members that has driven a large tractor pulling a disc harrow to prepare a field for planting, driven a smaller tractor raking dried hay for later bailing, or has ridden along in the cab of a combine while harvesting soybeans or corn. Another fact, both my mother and myself have only ever had Thanksgiving dinner at the farm. Thanks to my wife, Colleen, that tradition has continued, and hopefully it will continue long into the future.
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“I am proud of our families’ Bucks County farming heritage, and it now falls to me and my family to uphold the tradition of being good stewards of the land and our family homestead.”
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There is nothing quite like the peace and solitude of the farm, especially on a moonlit night or a snowy day. I enjoy the seasonal smells of freshly tilled soil and watching the crops grow following planting. Harvest time in the fall is also a yearly event that marks the passing of time and the seasons at our farm. The open spaces, which are preserved thanks to the Bucks County Agricultural Land Preservation Program, are home to deer, turkey, fox, hawks, and other of God’s creatures that we frequently observe at dusk and dawn. As you may be able to tell, I am proud of our families’ Bucks County farming heritage, and it now falls to me and my family to uphold the tradition of being good stewards of the land and our family homestead.
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So please support our local farmers by buying their products directly, and remember, in Bucks County: “There’s No Culture Like Agriculture.”
1-888-274-2908 - www.digitaljustice.net Call today to schedule your next
Video Deposition & Trial Presentation theWRITS
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Save the Date!
2016 Annu
al Bench Bar Conference • September • Grand
22, 23, 24; 2016
Cascade Lodge
• Hamburg,
New Jersey
• Bucks
County Bar Association
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SPRING 2016
community
Let’s Get Acquainted, Shall We?
Keep up your LinkedIn Profile and check it! It is amazing at how many folks don’t realize (myself included) at who has moved where, who is looking to hire, and who is in need of work—they just aren’t looking at LinkedIn. A couple of minutes each week may be enough to keep you up to speed on your connections. Then, see who they may know and how that may help you gain an introduction for a job interview. Say thank you. Here we go again, back to basics. I remain fascinated at how few people actually do this, either at the end of an interview, arbitration, mediation or Court proceeding. Thank the person for their time. They didn’t have to indulge your presence, after all. And for those in job interviews, at the very least, follow up with an email thank you to absolutely everyone who was in the interview room, not just the managers. I am so old school that I have sent hand written “thank you’s” to some interviewers. It made me stand out from others, because so few make the effort, I am guessing.
It’s a job to look for a job! – By Susan E. Dardes – Lawyers of all ages to need to know interview skills, be they for job interviews, client meetings, discussions with colleagues and of course, presentations to the Bench. So, the traditional job interview skills – of which I am thoroughly familiar – come in quite handy in all of those situations. I’ll try and impart some personal advice from my recent job search. Kudos the members of our Bar who helped me in this search with encouragement, leads and references. Thank you.
And if you are the interviewer? Much of the same pronouncements apply. Please be on time, please return calls and emails. Give feedback where and when you can.
First, the all important, networking. Even if you know just one attorney well enough to ask him or her for an assist, that’s fine. It’s a start. Give them a call. We rely way too much (I think) on the all pervasive email and texting world, and let’s be honest, it’s easier to duck and dodge an email than a telephone call. Of course, if you’re me, you will call and then follow up with a “sorry I missed you” email. Shame on any of you who don’t return a fellow attorney’s call. That’s just wrong.
And if you are asked to help with a referral but no one comes to mind or you don’t think you have any advice to impart? Don’t have a coffee or lunch with someone just to have a free coffee or lunch and then tell them you have nothing to share. It’s also hard to believe that regardless of our area of expertise, an attorney doesn’t know someone in the searcher’s area of practice. Keep thinking. It sounds cliché, but everyone knows someone.
Keep at it; it takes time. Let the referring attorney or whomever know that you made the connection with their connection. People appreciate that.
Remember that the search is only temporary. Thankfully. It was a long slog, but I found a job and it was from my connections at the Bar Association…. To whom I remain grateful.
So one connection will lead to another and if you let everyone know you are looking (for a job or a referral for work, or a recommendation for a new hire, whatever it might be), then the interviews will happen. Be prepared. Come with your resume for the job, your briefs and back up memorandums for Court and please bring the correct attitude. Attitude bleeds out more than competence, I have found out the hard way. If it’s not there, you’re not there. Be on time and be dressed for the part. I know this sounds obvious but I have seen people fail on both of these counts. Really? Good grief. The first is just plain manners and the second is just plain sense.
Handshakes and smiles. Good posture. What mom told you still applies. Lucky for me, I have a firm handshake and a lot of dentition. theWRITS
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community
An Easy Way to Support Legal Aid:
High Swartz LLP and McNamara, Bolla & Panzer, PC
The Bucks County Arbitration Fee Donation Program
High Swartz LLP
– By Barbara Overholser, Communications Manager, Legal Aid of Southeastern Pennsylvania –
Business, Corporate & Franchise Law, Education Law, Employment Law, Environmental Law, Family Law, Intellectual Property, Litigation, Municipal & Government Law, Personal Injury, Real Estate Law, Social Security Disability, Wills, Trusts & Estates, Workers’ Compensation
More than a decade after it was established, the Bucks County arbitration fee donation program is a growing source of support for Legal Aid of Southeastern Pennsylvania. And with federal funding cuts and constrained budgets for Legal Aid programs, every opportunity for fund development is critical. Bucks County is one of only two Philadelphia suburban counties that offer this easy, yet important, way to support Legal Aid. With the completion of a simple form, all or part of the fee which attorneys earn for serving on a Court of Common Pleas arbitration panel can be donated to LASP.
40 East Airy Street, Norristown – (610) 275-0700 116 E. Court Street, Doylestown – (215) 345-8888
www.highswartz.com
24-hr Service | 1.800.725.0563
LASP Board Member Dean Arthur, Esq., has participated in the program since its inception, donating all of his arbitration fees to the organization. “I just think it makes perfect sense,” he says. Mr. Arthur is such an ardent supporter of the program that when he’s assigned an arbitration date for which he’s not available, he’ll call the Court Administrator and ask them to reassign to someone else who donates their fees to LASP.
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138 Bucks County attorneys currently participate, and thousands of dollars have been donated to LASP since the program began. These dollars go directly to providing legal services for indigent residents of Bucks County.
215 W. Church Rd. | King of Prussia, PA
When you volunteer as an arbitrator you will receive a letter introducing you to the program. All you have to do is fill out the provided form to indicate that you wish to donate some or all of your fee to Legal Aid of Southeastern Pennsylvania. Donated arbitration fees are tax deductible to the extent allowed by law. For more information on how to donate your arbitration fees to Legal Aid of Southeastern Pennsylvania, please contact Ann Tydeman-Solomon, Development Director, at asolomon@lasp.org.
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SPRING 2016
community
Judge Alan M. Rubenstein
nent attorney, William Eastburn, had been arrested by the feds after he refused to move the RV that he and his fellow guests were in when then-Presidential Candidate Gerald Ford made a campaign stop at the Oxford Valley Mall. Fortunately, Alan was able to set things straight.
– By Chris Serpico –
After getting his undergraduate degree in History from Temple University, Judge Rubenstein attained his law degree at the University of Toledo in Ohio, where he served as Editor of the Law Review. He began his legal career as an associate at the Philadelphia law firm of Galfand and Berger, before deciding that his true desire lay in spending more time in the court room. As luck would have it, a position opened up on the staff of then-DA Ken Biehn, and in 1972, he joined the office that would remain his “home” for the next twenty-seven years. During his tenure, he personally tried thirty homicide cases. Not surprisingly, given his popularity as chief county prosecutor, he was elected to four terms, the only person in Bucks County history to do so.
After having served as a Bucks County Judge for the past seventeen years, and in the Bucks County District Attorney’s Office for twenty-seven years prior to that, including fourteen years as District Attorney, one would think he would be ready to settle into a comfortable retirement. But that is not the road Alan Rubenstein seeks to travel.
In 1999, he decided to leave the office he loved and put his name in nomination for judge, to which he was elected in November of that year, taking office in January 2000.
When he turned 70 in March, he faced up to the reality that current Pennsylvania law requires him to retire at the end of this year, in compliance with a 1968 provision of the Pennsylvania Constitution mandating retirement for all state judges in the calendar year in which they turn 70.
Besides serving on the Bench, Alan also is a licensed boxing judge in Pennsylvania, New Jersey, and New York. He’s been judging professional fights since 1995. When asked to recall his most vivid boxing memory, he recalled the time in 2008 when he was asked by the Las Vegas Boxing Commission to be one of three judges for the World Welterweight Championship bout between Sergio Mora and Vernon Forrest. (For the record, Forrest won in a unanimous decision.)
However, if the voters of the Commonwealth see fit to pass a proposed amendment on the ballot in the April primary election, the mandatory retirement age would be pushed back to age 75, and Judge Rubenstein will be able to continue to serve as a Bucks County jurist.
During his years on the Bucks County Bench, he has spent most of his time in family court, which is somewhat surprising considering his background is in criminal law. However, he came to realize fairly quickly that in family court, he was able to preside in cases involving “real people with real problems.”
Clearly, with only eleven full-time judges currently serving on the bench, it is clear that our county needs more judges, not less, especially ones of Judge Rubenstein’s experience and caliber. For example, Delaware County, with a population of 561,973, has twenty judges, and neighboring Montgomery County, with a population similar to Bucks County’s, has twenty-three judges. Something is wrong with this picture.
He’s found that he can be “proactive” in these cases, and with the proper analysis, he can make a positive influence in the lives of those who come before him, especially the children.
Although Judge Rubenstein has been a public figure for most of his long and storied career, there is no shortage of great stories he could tell (and as his office roommate for two years while serving in the DA’s Office, I am aware of quite a few of them). For instance, there was the time back in 1976 when he received an emergency phone call as the “on call” ADA from the Secret Service that they had in their custody a gentleman by the name of “Billy Spurn” who insisted that he speak with a member of the Bucks County DA’s Office. Turns out that promi-
Speaking of children, Alan and his wife Marilyn are the proud parents of two sons, Sam and Justin, and five grandchildren, four girls and one boy. Finally, I can surely state after spending an hour with Judge Rubenstein, if for some reason the voters of Pennsylvania should vote down the proposed change to the Pennsylvania Constitution, he could spend some of his free time authoring an autobiography on the fascinating life he has led in the law. I would certainly stand in line to buy that book.
Photo credit: news.temple.edu
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community ATTORNEY DISCIPLINARY AND ETHICS MATTERS
We Are: BCBF!
STATEWIDE PENNSYLVANIA MATTERS NO CHARGE FOR INITIAL CONSULTATION
– By Tina Mazaheri – Who is BCBF? We all are BCBF. The Bucks County Bar Foundation is the charitable arm of the Bucks County Bar Association. What does that mean? We are the group that makes it our mission to go out into our community, on behalf of all Association members, to promote the idea of justice through the good deeds of our Association members and then publicize what we have done.
Representation, consultation and expert testimony in disciplinary matters and matters involving ethical issues, bar admissions and the Rules of Professional Conduct
James C. Schwartzman, Esq. • Vice Chairman, Judicial Conduct Board of Pennsylvania • Former Chairman, Disciplinary Board of the Supreme Court of Pennsylvania • Former Chairman, Continuing Legal Education Board of the Supreme Court of Pennsylvania • Former Chairman, Supreme Court of Pennsylvania Interest on Lawyers Trust Account Board • Former Federal Prosecutor • Selected by his peers as one of the top 100 Super Lawyers in PA and the top 100 Super Lawyers in Philadelphia • Named by his peers as Best Lawyers in America 2015 Philadelphia Ethics and Professional Responsibility Law and Defendants “Lawyer of the Year,” and in Legal Malpractice Law
Why do we do this? Because we are BCBF. We are here to help our community members and to improve our profession’s image in our community, all at the same time. BCBF has evolved over the past few years to define our mission on your behalf and to establish our identity. It is my goal over the next two years, as BCBF President, to get you to know who we are, care who we are, understand what benefit we provide to you and for the community to know us, respect us and seek out our help when they need us.
1818 Market Street, 29th Floor • Philadelphia, PA 19103 • (215) 751-2863
What have we accomplished? BCBF has provided support for charitable, law-related projects and programs in the community and donated tens of thousands of dollars in past years to local charities and organizations such as: Legal Aid of Southeastern Pennsylvania, Doylestown FISH, Tabor Home, Network of Victims Assistance (NOVA) and the Lenape Valley Foundation. We have gone into area elementary schools to teach a program on constitutional law and given each and every student their own copy of a child-friendly colorful picture book on the topic, as well as a gavel-shaped pencil. For some children, that may be the only book they will receive as a present all year. Think about that. We have created and continue to award college scholarships to area students. One such college scholarship fund was created in memory of former Association President Thomas E. Mellon, Jr. In his memory, I encourage each of you to make a contribution to the fund each and every Saint Patrick’s Day to remember Tom for the many times he may have invited you to his firm’s legendary party. It is not too late to do so for this year. We are BCBF; we are you.
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SPRING 2016
community and perform the copyrighted work, and create derivative works based on the work at the exclusion of others. Those exclusive rights are tempered, however, by the primary defense to copyright infringement: the doctrine of fair use. Fair use is a limited ability to use a copyrighted work by exercising one or more of the copyright owner’s exclusive rights without having permission from or compensation to the owner. As codified in the Copyright Act, courts determine whether a particular use is fair by examining four factors: (1) purpose and character of use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect of the use upon the potential market or value of the copyrighted work. While each of the factors is examined for fair use, many courts and legal scholars herald the first factor, the purpose and character of use, as the most important.
(Re)Defining Copyright Fair Use
The inquiry into the purpose and character of use has been defined purely through academia and case law. In 1990, after years of struggling with a vague test for fair use, then-District Court Judge Pierre N. Leval authored an essay entitled “Toward a Fair Use Standard” to present what would eventually become the foundation for the transformation requirement of fair use. In essence, Leval argued that use of a copyrighted work must employ the work in a different manner or for a different purpose than the original to be considered fair. Leval claimed that unauthorized use of copyrighted materials should only be allowed when it adds value to the original work.
– By Denis Yanishevskiy –
Old World, New Order In ways the legal world is still struggling to comprehend, the Internet has and continues to play an influential role in defining modern and future copyright law. While quite ubiquitous today for casual users, the ability to instantaneously publish and forever preserve intellectual property online has deep ramifications for copyright authorship, ownership, and rights. When the copyright system was formed, such technological capabilities only existed in works of fiction, and typical uses and misuses of copyrighted works were expected.
Leval’s efforts to emphasize what he believed to be the heart of the fair use inquiry certainly influenced the Supreme Court. In the seminal case on the issue, Campbell v. Acuff-Rose Music, Inc., transformative use became the official legal standard for determining the purpose and character of fair use. If the hope was to clarify the fair use inquiry, however, Campbell has, in hindsight, only raised new questions. In the time since Campbell, the transformative use inquiry has become the heart of the fair use test, with recent cases treating it almost as a determinative fifth factor.
Today, however, courts are tasked with using that same legal framework to draw lines between permitted and infringing uses of works when technological innovation changes the question before the ink dries. In fact, the very nature of “use” is constantly being redefined in a culture fueled by reimagining, combined with the ability to make that a reality. So, what are courts to do in deciding what use constitutes an infringement of copyright and what use is considered fair?
The Artist Formerly Known As Transformative In September 2014, the artist Richard Prince was recognized with an installation in the Gagosian Gallery in New York. Prince is primarily known for projects altering others’ photographs. Most famously in 2013, Prince’s changes to a collection of photographs of Rastafarians in Jamaica taken by Patrick Cariou escalated into a copyright infringement case, Cariou v. Prince, taken up by the Second Circuit. However, the court decided that Prince’s alterations were sufficiently transformative so as to constitute fair use. In broad terms, the court decided that fair
What’s Fair is Fair (Use) The essence of copyright law hinges on a copyright owner’s exclusive rights under the Copyright Act. Generally, a copyright holder has the right to reproduce, distribute, publicly display
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use was one that alters the original work with new expression, meaning, or message. For his 2014 New Portraits collection, Prince saved screenshots of strangers’ self-portraits on Instagram, added some Instagram-style comments, and enlarged them on canvas to sell them for $90,000 each. Though some vocal outrage has emerged from some individuals who found their portraits on the gallery walls, no suit has yet been instituted.
There also persists the issue of how transformative is transformative enough, and the envelope on the “I will know it when I see it” approach is constantly being pushed by artists like Prince. Even in cases where at least the transformative nature of the activity in a lay sense seems as though it should not be questionable, courts seem to yield to entities like Google in favor of the enormity of the public benefit. After all these years, do courts remain confused as to where transformative use fits into the copyright scheme despite the doctrine’s early promise, or are they perhaps finally succumbing to the nature of the technological landscape in which we find ourselves and simply attempting to couch new ideas in old frameworks while waiting for the system to catch up? Can retweets and reposts of copyrighted material, of which millions happen every day, be considered fair uses? Perhaps the matter of public benefit, which was previously hidden behind the need for added value, has just become too great and too necessary to ignore. Maybe this is the new nature of copyright, or maybe courts are still struggling to make old definitions of copyright fit the new creative, or at least beneficial, status quo.
Scanning is Transformative? One of Google’s latest ambitions has resulted in another legal battle over transformative use. In the early 2000s, Google instituted an initiative to create the largest searchable online database of full-text books and magazines. The Google Books program aimed to scan, convert to searchable text, and store as many unique titles as possible, to ultimately become the world’s largest digital library. However, copyright concerns over the mass digitization project were raised by the Authors Guild, which filed suit against Google for copyright infringement in 2005 and continues the litigation battle to this day. Google’s main defense, upheld most recently by the Second Circuit, was that mass digitization constituted sufficiently transformative fair use. The court based its decision primarily on the benefit of Google’s endeavor to the public, though couching the decision in other fair use terms by asserting that views of the text would be limited and that the market and value of the original works would not be affected, despite Google’s plan to provide access to full-text publications.
Editor’s Note: Mr. Yanishevskiy is a charter member of the newly formed BCBA Intellectual Property Section, chaired by his colleague, Frank Mazzeo. The section welcomes all interested new members.
A Transformative Future? What the court decisions discussed above symbolize legally is difficult to reconcile with the idea of transformative use. It is surprising to think that after decades of fair use jurisprudence since Campbell, activities such as commenting on photos and digital scanning can nonetheless be considered transformative. Yet, other recent cases have also followed suit, most notably those concerning similar types of Internet activity as in Google’s and Prince’s latest endeavors. At the very least, this stream of decisions indicates that how transformative use, or the addition of new expression, new purpose, or new aesthetic to a preexisting work, figures into the general four-factor analysis of fair use is still debatable. It may be that transformation should be considered when analyzing the purpose and character of the use alleged to be fair under the first factor, as proposed by Judge Leval and decided in Campbell, but as suggested by the decision in Prince, transformative use is often instead akin to a fifth factor or a separate test for fair use altogether because of how determinative it can be.
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SPRING 2016
technology
Tech Tips From a Recovering Geek: Unclog Your Inbox – By Jason R. Weiss, Esquire –
Email is everywhere – on computers, phones, tablets, and even watches. While many of us yearn for the days of pen and paper, the reality is that we live in an electronic world where instant communication is expected. With more being done by email every day, it is important to understand how best to utilize your email system, as well as recognize some limitations. Attorneys and others in the legal field, by and large, are electronic hoarders. While saving every email sounds great in theory, practically speaking, it is virtually impossible to do so. In addition, for some email systems, the larger the email account, the more susceptible it is to problems.
subfolders is quite simple. In Microsoft Exchange, right click on the Inbox and select New Folder then name the folder as you see fit. In Mac Mail, select the Mailbox Menu and then New Mailbox, then follow the prompts. Setup varies for each mail application, but is relatively simple for all. Another tool which frequently goes unused is the “Rule” feature. Rules allow your email account to automatically perform specified tasks. The most common rule is the out of office reply, which will reply to every email received with an out of office message for a set period of time. While this is an excellent use of a rule, it certainly does not help on an everyday basis. Rules can also help organize your emails. For example, I receive hundreds of emails each day from various email groups. Each email comes with a unique subject line. With a Rule, I have all emails from each group placed directly into a specific subfolder of my inbox. The Rule does this by matching the unique terms in the subject line and then performing the task assigned – in this case, moving the item to a subfolder. This is great for emails that are not of the utmost importance and can wait for your review. Other helpful uses of Rules include automatically forwarding emails to others with specific subject lines and flagging items as important from specific individuals (very helpful for those with a demanding supervisor).
If you simply cannot part with any emails that come into your inbox, set up an easy to use organizational structure. From past experience, I have found that most people tend to keep all emails received directly in their inbox. While email programs do provide the ability to search the inbox, it is quite cumbersome and often fails to find the necessary items. To avoid such issues, I highly recommend categorizing emails via subfolders. Every mailbox allows for the creation of folders. For example, my Inbox contains a folder titled “Clients” which contains subfolders for every active client file for which I am responsible. If I receive an email on the Smith case, I move it to the corresponding “Smith” subfolder. My inbox remains clear and when I need to find an email related to the Smith file, I know where to look. Sent items can be moved into subfolders as well, creating continuity. Generally speaking, creating
theWRITS
The amount of work completed and correspondence sent via email is bound to increase in the coming years. The ability to efficiently sort and peruse your emails will only increase in importance. I am confident the basic features discussed will help you start your journey to a clean inbox and save time throughout the day. Happy computing!
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entertainment Brushes with Greatness:
5.
sang Happy Birthday to my wife before starting his second set
3. Sold a gun
cabinet and a desk respectively at my father’s furniture store to John Popper (Blues Traveler) and
1. Met Jimmy
Buffett in the
lobby café of the Ritz-Carlton
(Chicago, IL)
2. Spoke with
Al Stewart – and found him a plate of hors d’oeuvres – at a pre-concert reception
James Taylor
(Philadelphia, PA)
Rob Hyman
(The Hooters)
4. Was kissed by
(Quakertown, PA)
Nan Mancini
(Johnny’s Dance Band) on stage at a bar show! (Margate, NJ)
(New Hope, PA) Photo credits: Jimmy Buffett: palmbeachpost.com / Al Stewart: www.ingenuemagazine.co.uk / John Popper: kevin-stalkerazzi.blogspot.com / Nan Mancini: www.cdandlp.com / James Taylor: fanart.tv
Be yourself and feel right at home arts to cultural, spiritual and intellectual pursuits—you’ll fit right in and enjoy an abundance of welcoming new friends.
Retire your way! Bring your independence of spirit to Pennswood Village. Be inspired by 82 acres of serene natural beauty. Enjoy a superb range of social, dining and wellness amenities. Give yourself the peace of mind of knowing any future health needs can be taken care of right here on campus. Being yourself means feeling right at home at Pennswood Village.
Beautiful Pennswood Village in Bucks County
is a unique retirement community that celebrates the joys of individuality. This means our residents are wonderfully diverse—a perfect match for the splendid variety of natural beauty found throughout our campus.
Call 888-851-3647 to receive your FREE information packet.
Come join them in a warm, caring community, based on Quaker values, that’s all about you beingg delightfully you. If your interests run from fitness to creative
1382 Ne Newtown-Langhorne Road Newtown, PA 18940 www.pennswood.org WRIT
31
SPRING 2016
L to R: Linda J. Bishop, Nancy J. Krulla, Blair T. Rush, John C. Spier, Donald P. Worthington, Aaron M. Sattler, Kelley A. Cwiklinski
When It Comes To Business Banking in Bucks, We’ve Got You Covered. At Covenant Bank, our roots are in Bucks County and so are our decision makers. Our team of financial experts are commited to delivering timely financial solutions. And beyond banking products, we have professional development programs and other resources that can help your business or organization grow and succeed. When we say “We’ve got you covered”, we really mean it. Let’s talk.
MEMBER FDIC
1980 South Easton Road n Doylestown, PA 18901 (267) 327.4910 n YourCovenantBank.com