The Legal Intelligencer Blog

Sandusky Loses Bid to Delay Trial

By Ben Present
Of the Legal Staff

The Pennsylvania Superior Court has denied an 11th-hour attempt from Jerry Sandusky’s defense to delay the trial of the former Penn State assistant coach, which is slated to begin next week.

Sandusky, facing 52 sex-related charges, had been granted a small continuance, slating his trial for a June 5 start, but Senior Judge John M. Cleland has since denied additional requests.

Friday, a three-judge panel of the Superior Court followed suit, denying the embattled coach’s emergency petition to certify the case for review without comment and, in turn, denying as moot his emergency motion to stay the case.

Attorneys and others involved in the impending trial have been barred from commenting on the case by a gag order issued by the court in April.

Unless the coach’s legal team attempts to exhaust review from the state Supreme Court, or he takes a plea deal, the decision appears to greenlight the coach’s trial. Lawyers are expected to open to the jury, at the earliest, on June 11.

Speculation that Sandusky might be engaged in plea negotiations quickly ended Wednesday after an in camera meeting between Sandusky’s defense, prosecutors and the judge turned out to be over another defense effort to delay the trial.

Cleland denied that request in a four-page order Wednesday, leading to the coach’s most recent attempt to delay his trial via an appellate court.

It was unclear what Sandusky told the Superior Court in support of his petition for review, as the panel’s order granted his request to do so under seal.

In Sandusky’s most recent motion for continuance filed with the trial court, he cited the following: the unavailability of a jury consultant, an unprepared defense expert, a paralegal who is having surgery, difficulty reviewing discovery material provided by attorneys for the state, and the inability to call two former Penn State administrators to the witness stand because they have taken their Fifth Amendment rights.

Courthouse Renamed for Justice Kidd Stout

By Amaris Elliott-Engel
Of the Legal Staff

Philadelphia City Council voted Thursday to rename the city’s criminal courthouse after former state Supreme Court Justice Juanita Kidd Stout, who was the first African-American woman to sit on a state Supreme Court in the country.

The Criminal Justice Center will now be called the Justice Juanita Kidd Stout Center for Criminal Justice. Support for the ordinance was unanimous.

Stout died in 1998 at the age of 79.

Stout, who was born in Oklahoma, studied law at Indiana University and moved to Philadelphia in the 1950s. She became a judge on the Philadelphia Municipal Court in 1959, followed by election to the Philadelphia Court of Common Pleas and her appointment to the state Supreme Court.

Philadelphia Court of Common Pleas Judge Sheila Woods-Skipper, president of the National Bar Association Judicial Council’s Clifford Scott Green Chapter, said in a news release that Stout remains a role model for justice and that the NBA has been advocating for renaming the building after Stout for more than a decade. “We look forward to the day that Justice Juanita Kidd Stout’s name will be prominently displayed permanently for everyone to see,” Woods-Skipper said.

The Philadelphia Bar Association also had passed shortly after her death a resolution in favor of renaming the courthouse after Stout.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is lawyers making closing arguments in the Catholic Archdiocese of Philadelphia priest sex-abuse trial. As reporter Amaris Elliott-Engel writes, a prosecutor charged that Monsignor William J. Lynn lied to an investigating grand jury and on the stand. The trial is expected to go to jury today.

Also above the fold on Page 1, reporter Gina Passarella writes that Pepper Hamilton has continued its leadership changes by naming a new managing partner. Thomas J. Cole Jr. will be the new MP, effective Jan. 1, 2013, the firm announced Thursday.

Below the fold on Page 1, Amaris Elliott-Engel writes that a Philadelphia jury has awarded $4.2 million for a one-third ownership stake in a granite and marble company with disputed ownership.

In more Regional News on Page 3, Gina Passarella looks at how Pennsylvania firms fared in the Am Law 200 rankings released yesterday. Despite most of the five Pa.-based firms in the second hundred having increases in gross revenue, it was tough sledding to move up the list.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section, including the First Circuit ruling DOMA is unconstitutional.

In a Law Firm Management column on Page 5, Edwin B. Reeser writes about the economic benefits of three different types of lateral hires.

In an Intellectual Property column on Page 7, Lewis R. Clayton writes that trademark owners have gained leverage in keyword ad wars.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Think Like a Client to Grow a Healthy Practice

By Kimberly Alford Rice
Special to the Legal

You won’t always be the low man on the totem pole. One day, you will have clients of your own, IF you really want to.

With so much emphasis placed on research, document review and shadowing occurring in the first years of a lawyer’s career, it is imperative for the lawyer to take the initiative to increase her exposure and interaction with clients. Often, young lawyers hear their supervisors say they should focus primarily on doing “good work.” In other words, the last thing they would want you to do is to spend time building relationships with clients and potential clients. That thinking works until the economy tanks and those firms lay off associates and income partners who "just do good work."

Clearly, there is a disconnect between what is taught in law school and what is expected in law practice. With little or no emphasis on building relationships with clients (new and prospective), it is no wonder that lawyers are unsure how to actually attract new clients. The “best” way is to begin to think like a client. Here are a few tips:

•  Put yourself in clients’ shoes. They have budgets to meet and business problems to solve, so create a plan of how you can make their lives easier in your current situation. Take the initiative and propose to a responsible partner an “off-the-clock” meeting with a client to better understand their struggles.
• Bone up on your interpersonal and relationship building skills. Survey top partners in your firm to learn how clients select their lawyers and what is most important to them.
• Observe and learn how more senior attorneys in your firm interact with clients. Take note of the thought-provoking, open-ended questions they ask to signal to clients that they are genuinely interested in the client’s issues and business.
• Take special care to learn to actively listen to others. This skill is so key to fostering solid relationships and developing better relationship-building skills. It is essential in developing trust and rapport.

Lobby for your firm to train associates in client development skills to kickstart an institutional approach to building a book of business. Studies show that when associates have the opportunity to learn client development skills, they are more energized about their billable work. They also appreciate that their firm has invested in them. Many associates I have coached have become partners in their firms and they are passing down what they have learned to the young associates in their offices.

The worst action you can take is no action. Get out from behind your desk, get out among business professionals and take charge of your career.

Kimberly Alford Rice is principal of KLA Marketing Associates, a business development advisory firm focusing on legal services. As a legal marketing authority, she helps law firms and lawyers develop practical business development and marketing strategies which lead directly to new clients and increased revenues. Additionally, she provides career management services to lawyers in transition. She can be reached at 609-458-0415 or via e-mail at kimberly@klamarketing.net.

ESPN Scores Contract Victory

By Elizabeth J. Goldstein
Special to the Legal

Apparently, ESPN knew long before Faith Hill belted out her NBC opening number that we’d all been waiting all day for Sunday night – and not for baseball. The case of ESPN v. Office of the Commissioner of Baseball, 76 F. Supp.2d 383 (S.D.N.Y. 1999), tells an interesting contractual tale. The contract between ESPN and MLB required ESPN to broadcast a baseball game every Sunday night. ESPN could pre-empt this schedule “for an event of significant viewer interest” if MLB gave its consent. MLB could not unreasonably withhold this consent.

In January 1998, ESPN requested MLB’s approval to broadcast several NFL games on Sunday night in lieu of baseball games. The baseball games would then be moved to ESPN2 per the parties’ contract. MLB refused to grant its permission for the switch. However, ESPN went ahead and broadcast the NFL games anyway. MLB refused to allow ESPN to broadcast the baseball games on ESPN2.

The same series of events occurred in January 1999. ESPN sought permission to move several Sunday night baseball games to ESPN2 so it could broadcast Sunday night NFL games on ESPN. MLB refused. In April 1999, MLB terminated its contract with ESPN, alleging breach of contract based upon ESPN’s decision to broadcast Sunday night NFL games. In the lawsuit, the parties disputed whether past conduct, including a prior written contract between the parties, was admissible to assist a jury in interpreting the contract provision in dispute, the provision requiring MLB not to unreasonably withhold its permission for ESPN to broadcast something other than baseball on Sunday nights.

MLB argued that ESPN could not introduce the prior written contract because of the current contract’s merger clause. The court, however, disagreed. It concluded that while the merger clause prevented the prior written agreement from being considered part of the agreement, it could be used to discern the meaning of an ambiguous contract term. Thus, the prior written agreement was admissible at trial to shed light on the meaning of the disputed provision.

Of course, many drafters intend to start with a clean slate when executing a new agreement. This is one of the reasons for the merger clause. To truly excise prior agreements and prior conduct from the interpretation of the new agreement, one treatise, Negotiating and Drafting Contract Boilerplate, Tina L. Stark, ALM Publishing, New York, 2003, suggests the following sentence:

“The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings.”

Whether or not such a clause would effectively prevent a court from relying on extrinsic evidence where it finds the contract language ambiguous or unclear is problematic, however. The suggested language might well be effective to preclude additions or qualifications to the present agreement, but “interpretation” would be difficult to eliminate where a court is seeking guidance, in construing a doubtful term.

In any event, when parties seek to use a prior course of dealings to avoid contractual duties or to unreasonably withhold approval of the other party’s request for relief from an onerous term, perhaps the question should be: Are you ready for some litigation?

Elizabeth J. Goldstein is a member of the business group at Dilworth Paxson. Readers can contact her via email and follow her on Twitter.

This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney-client relationship.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s lead story in PLW is a look at the effect Justice Joan Orie Melvin’s suspension will have on the state Supreme Court. As reporters Zack Needles and Ben Present write, the high court might have lost its tiebreaker based on a study of cases over the past two years.

Below the fold on Page 1, Ben Present writes that new juvenile rules aim to protect confidentiality.

On Page 3, Ben Present writes that the Commonwealth Court has ruled there is no benefits exception for “funded” employment.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers drafting pleadings without signing their names; Sam Pond and Allison Wheeler’s Workers’ Compensation commentary on the real goal behind eliminating administrative burdens; and Shira J. Goodman and Lynn A. Marks’ Judiciary commentary on why sufficient funding and willing citizens are critical to the courts.

The top story in today’s Legal is Dechert’s products liability and mass torts group no longer serving as the king of the firm’s litigation focus. As reporter Gina Passarella writes, the firm has lost at least five products liability partners since last year and has adjusted its focus in some ways.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the U.S. Court of Appeals for the Third Circuit sympathized with Blank Rome and another law firm in a document battle between a defunct corporation and the government, which is seeking hundreds of allegedly privileged documents being held by Blank Rome. The company tried to appeal a district court order granting the government’s request for the documents, but was ultimately dismissed, although a split three-judge panel took a sympathetic view of the position the law firms were in.

In more Regional News on Page 3, reporter Zack Needles writes that the state Supreme Court justices have agreed to hear arguments on whether medical malpractice defendants may rely on an “error in judgment” defense at trial.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Health Care Law column on Page 5, Vasilios J. Kalogredis and Karilynn Bayus write about the dilemma of recovering costs in an overpayment victory.

In an Intellectual Property column on Page 7, Paul F. Prestia and Antranig Baronian write that patent clearance opinions are still important and still relevant.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Corbett Nominates Ward to Allegheny Bench, Elevates Aichele to Chief of Staff

By Gina Passarella
Of the Legal Staff

Governor Tom Corbett said today he would nominate his current chief of staff, William F. Ward, to a vacant seat on the Allegheny County Court of Common Pleas.

Corbett simultaneously announced the state’s general counsel, Stephen Aichele, would succeed Ward as Corbett’s chief of staff, effective Tuesday, May 29. Aichele left his role as chairman of Saul Ewing to take the position of general counsel at the start of Corbett’s administration.

Pending confirmation by the state Senate, Ward will serve as a special adviser to Corbett.

Ward, 60, of Mt. Lebanon, Allegheny County, will depart his present post after serving 16 months as the governor’s top aide.

“For as long as I’ve known Bill, it’s been his dream to be a judge,” Corbett said in a statement. “I’m happy to help make that dream happen, both for Bill and for the citizens who will benefit from his knowledge and integrity.”

Corbett described Ward as “a trusted friend and adviser for more than 30 years.”

“My current role in government has been both professionally challenging and personally rewarding,” Ward said in a statement. “A position serving on the bench in Allegheny County will allow me to be reunited with my family in Pittsburgh while continuing to serve the Commonwealth.”

Ward is a former federal and state prosecutor who served as first deputy to Corbett when he was state attorney general in the mid-1990s. He was considered for judicial vacancies before, both in Allegheny County and for a position as U.S. magistrate judge for the Western District of Pennsylvania, according to a press release issued by Corbett’s office.

Ward began his legal career as a law clerk to U.S. District Judge Louis C. Bechtle of the Eastern District of Pennsylvania. Two years later, then-Attorney General Griffin Bell appointed him assistant U.S. attorney for the Western District of Pennsylvania. He later was promoted to chief of the office’s economic crimes section.

In 1996, Corbett appointed Ward to be first deputy attorney general. The following year, Governor Tom Ridge named Ward as chairman of the Pennsylvania Board of Probation and Parole, a cabinet-level position. He resumed his legal career in Pittsburgh in 2003 until Corbett appointed him to serve as chief of staff.

Corbett spokesman Kevin Harley said the governor has not yet determined who the new general counsel will be to replace Aichele. He said the governor will probably announce an acting general counsel and then make a determination later on an official replacement.

Gina Passarella is the senior reporter for The Legal. She can be contacted by e-mail at gpassarella@alm.com or phone at 215-557-2494. Follow her on Twitter at @GPassarellaTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Thursday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is a look at Saul Ewing’s firm financials. As reporter Zack Needles writes, the firm’s revenue inched up, about 0.8 percent, and its profits per partner dipped 3 percent last year.

Below the fold on Page 1, reporter Gina Passarella writes that Dechert has opened a Chicago office with a trio of securities lawyers from Katten Muchin.

Also below the fold on Page 1, reporter Amaris Elliott-Engel writes that Monsignor William J. Lynn took the stand in his own defense yesterday. Lynn is charged with endangering two men who testified they were sexually abused by two priests as youths.

In more Regional News on Page 3, Zack Needles writes that Penn State has announced Stephen S. Dunham as its new general counsel. Dunham has been vice president and general counsel of Johns Hopkins University.

Also on Page 3, reporter Ben Present writes that the state Supreme Court has unanimously ruled that exposure to one fiber of asbestos is not tantamount to a lot.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Bankruptcy Update on Page 5, Andrew C. Kassner and Joseph N. Argentina Jr. write about avoidance actions against seller void purchased bankruptcy claims.

In this week’s Young Lawyer column on Page 7, Susan Morse writes about the perils of overlawyering and underlawyering.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is Duane Morris picking up 16 lawyers from Dewey & LeBoeuf’s New York, Boston and Washington, D.C., offices. As reporter Gina Passarella writes, the team of nine partners, three counsel and four associates is led by New York-based corporate partner Elizabeth W. Powers.

Below the fold on Page 1, reporter Amaris Elliott-Engel writes that the defense opened Tuesday in the trial of Monsignor William J. Lynn, with a focus on Cardinal Anthony J. Bevilacqua’s control.

In more Regional News on Page 3, Amaris Elliott-Engel writes about a new Philadelphia Traffic Court rule that aims to prevent lengthy jailings.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, James A. Matthews III writes the first part in a series on attorney-client privilege within the client organization.

In a Commentary on Page 7, Judi Cohen writes about mindfulness and stress and handling the demands of being a lawyer.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Purchasing Department Fraud – A Major Threat and Hard to Detect

By B.J. Hoffman
Special to the Legal

In my last post, I highlighted that most organizations lose 5 percent of annual revenues to fraud, waste and abuse – a staggering figure that can mean the difference between a firm’s survival and its demise, especially in challenging economic climates.

One of the greatest fraud risks that you and your clients face is within the purchasing function, as a tremendous amount of funds flow through most companies’ cash disbursement and purchasing departments. Unfortunately, purchasing frauds can be among the most difficult to detect, owing to the fact that they are often conducted “off the books” by way of vendor kickbacks to employees.

Kickbacks to employees represent one common purchasing fraud, but other schemes include payments to fake vendors, bid-rigging and false invoicing for services not performed or goods not received. Typically, these frauds involve a company purchasing agent who has been “compromised” by a vendor who seeks to do more business with the company. The scheme may begin with small tokens of appreciation given to the employee responsible for purchasing, including tickets to sporting events, meals and gift certificates. While not all gifts from vendors to company employees indicate the presence of fraud, the presence of vendor gifts should pique management’s interest and lead to greater scrutiny over vendor/employee relationships.

Employees experiencing financial difficulties are particularly susceptible to such schemes, as they tend to be more able to rationalize the acceptance of kickbacks, so as to alleviate their financial or lifestyle pressures.

Indicators of possible kickback schemes include:

• Unexplained increases in operating expenses, measured as a percentage of company revenues.
• Poor purchasing department documentation regarding vendor selection and bidding processes.
• Excessive entertaining of purchasing staff by vendors.
• Poor cash management practices (the payment of certain “preferred” vendors immediately, instead of the standard payment timetable).
• Receipt of substandard goods/services from certain vendors (possibly an indicator that the vendor is recouping its kickback costs by substituting inferior products at delivery).
• Unexplained lifestyle changes among purchasing department staff (increased spending without a known sources of funds).

Among the ways management can prevent kickback schemes are:

• Get control over company expenses by adopting budgets and by measuring actual performance against those budgets.
• Adopt vendor selection policies, so that management (outside of the purchasing department) has discretion over the approved vendor list. Changes to the approved list would require management approval.
• Secure competitive bids for major expenses and strictly control the bidding process, so that management is closely involved in the receipt of sealed bids. Regularly check competing prices in the marketplace.
• Adopt strict gift acceptance policies and procedures for employees and compel the employees to annually acknowledge the policy. Similarly, many companies require outside vendors to agree to not offer gifts to purchasing department personnel.
• Monitor the quality of goods and services received from vendors.
• Segregate duties within purchasing to separate purchase authorization from the receipt of goods, and from the disbursement of funds to vendors.

Kickback schemes within purchasing departments are difficult to detect, since accounting records will continue to reflect cash disbursements to legitimate vendors for actual goods and services received. However, the prices paid for such goods and services will be higher than normal, and the quality of the goods received will often be below standard.

The adoption of effective policies, procedures and controls within your purchasing department can go a long way in the effort to minimize the losses every organization incurs from fraud, waste and abuse.

B.J. Hoffman is a certified public accountant and certified fraud examiner for Citrin Cooperman, an accounting, tax and business consulting firm. He is a partner in the Philadelphia office. Hoffman provides clients with a mix of audit, tax and litigation support services. He often works with closely held entities in a variety of industries including professional service firms and real estate enterprises. He can be reached at bjhoffman@citrincooperman.com or 215-545-4800.