The Legal Intelligencer Blog

N.Y. Lawyer Accused in Galleon Insider Trading Case Has Local Ties

By Gina Passarella
Of the Legal Staff 
 
While Preet Bharara, the U.S. Attorney for the Southern District of New York, wouldn’t name the ringleader of $40 million insider-trading operation outlined in two criminal cases, the SEC said in a joint press conference today a New York lawyer “fueled” the scheme by allegedly divulging information about client deals.

The lawyer is Arthur Cutillo, an associate in Ropes & Gray’s New York office. He and several others were charged today criminally in the Southern District and civilly by the U.S. Securities and Exchange Commission for allegedly feeding information about merger activity involving clients of his firm to another lawyer who passed it along to hedge fund operators and traders, the agencies said in court filings and at a press conference in New York Thursday.

Both government agencies have tagged Schottenfeld Group’s Zvi Goffer, whom the SEC said was otherwise known as “the Octopussy” because of his alleged ties to so many insider trading sources, as collecting the data and passing it on to other traders, according to press releases and statements made at the press conference. Goffer is a named defendant in both lawsuits.

Cutillo has ties to the Philadelphia area and central New Jersey. He graduated from Rutgers University in 1999. Then he received a master’s degree from Villanova University in chemical engineering in 2004, soon following that up with a J.D. from its law school in 2005.

Between his undergraduate years and post-graduate education, Cutillo worked as a manufacturing engineer at Merck & Co., according to his LinkedIn biography. He joined Ropes & Gray in September 2005 and has been there ever since. His firm bio has been taken off the Ropes & Gray’s site, but was posted online by Above the Law.

In a statement given to The Legal’s sister publication, The American Lawyer, Ropes & Gray said, “We are deeply disappointed about this situation, which suggests an extreme breach of this person's duty of trust to our clients and to the firm. We cannot comment in detail on an ongoing investigation but we are moving quickly to protect our clients and are cooperating fully with authorities.”

The U.S. Attorney’s Office for the Southern District worked with the FBI’s New York branch and the SEC to bring this case together. The federal suits, which have charged a slightly smaller group of individuals than the two SEC suits, puts a $40 million price tag on the corruption. The SEC, which charged a few additional corporations, says the case is worth $53 million, according to statements they made at the press conference.

The first round of filings in connection with the hedge fund Galleon Management and its founder Raj Rajaratnam, was made in late October. Today’s announcements add 14 new defendants, five of whom have already pled guilty to the criminal charges. Neither Cutillo nor Goffer has entered a plea in either of the cases.

What Have You Done About Employee Use of Facebook and 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]

 A Good Lawyer Can Admit When He’s Wrong

A few months ago, I had a blog post about social media policies. I had already developed a few of these policies for clients, as well as our firm’s social media policy. Confident that I knew my stuff, my blog post focused on the rules and restrictions that form the backbone of a great social media policy.

A few weeks ago, I re-read my blog post. When I finished reading it, the first thing I thought to myself was, “This sounds like something a lawyer would say.”

And that’s not necessarily a good thing.

A short time after reading my blog post, I really got an eye-opener when I spoke at a global conference in Boston as a part of panel discussion on the risks and rewards of employee use of social media. My role at this conference was the risk manager. So I delivered my best gloom and doom spiel. However, the audience -- chock full of business owners and decision-makers -- wasn’t having it. 

In fact, the general consensus in the room among the non-attorneys; i.e., everyone in the room except me, was that employees should be encouraged to use social media. And too many rules may have a chilling effect.

I have friends in human resources who feel the same way. Shortly after the conference, I read Mike VanDervort’s fabulous blog post at “The Human Race Horses.” VanDervort, an HR specialist, offered several tips and suggestions for human resources professionals to increase use of social media.

So I’ll admit it. I was guilty of over-lawyering. But the blinders are now off. I’ve now grasped that too many rules and not enough guidance may send the wrong message to employees who enjoy their jobs and who can help strengthen a company’s brand by sharing the company’s vision through the use of social media.

Then Again, a Little Protection Couldn’t Hurt 

Even social media’s top advocates must acknowledge that trusted employees –- even those with the best of intentions -– can put their employers at risk by using social media.  You’ve heard about what happened at Domino’s Pizza, right?

So why is it, then, that if so many people in the workplace are making use of social networking sites, and so many businesses promote employee use of social media, that so many companies have yet to develop and implement a social media policy?

How many businesses do not have social media policies drafted and implemented? In 2008, 90 percent of them didn’t! This year that number has fallen, but not by much. Just over 1 in 3 employers has a social media policy drafted and implemented.

If you don’t have a social media policy, don’t fret. You’re definitely not alone.

What You Need to Do 

A little older and little wiser, below I offer five suggestions on how to draft and implement a successful social media policy. Some of the information comes from my first blog post; it wasn’t all bad. Heck, I even have a few more rules that I recommend to clients. Other tips flow from my continued immersion in social media and my personal encounters over the past several weeks.

Much of what I say below also comes from some of the best social media experts that HR has to offer. Jessica Lee, the editor of the blog “Fistful of Talent,” an “upscale HR pro,” and one of my favorites on Twitter, has a great blog post on what makes a good social media policy. Lee’s post links to another great article by Sharlyn Lauby. Lauby specializes in employee training and HR consulting and is also one of my Twitter faves. We’ve even worked together on a few social media articles (here, here and here). As I do, both Lee and Lauby advocate a mix of rules and guidelines for a social media policy.

And now, my five keys to social media policy success:

1. Think. Don’t Google. Developing a social media policy does not mean plugging “sample social media policy” into your favorite search engine and “borrowing” the first policy you find. It’s OK to get some ideas for social media policies by reviewing ones you find online.  However, social media policies are not one size fits all. Instead, the best social media policies reflect the company’s philosophy, culture and goals. Before putting pen to paper, this process requires both careful planning and introspection. Conversely, “Ready, Fire, Aim” is a guaranteed recipe for failure.

2. Incorporate both guidelines and rules. I have come across several social media policies that I'll term "permissive." Really, they are nothing more than guidelines for employee use of social networking sites (e.g., be polite, think before you post, consider the company's vision, etc.). For an example of what I mean, check out Intel’s Social Media Guidelines.

Other policies are more restrictive (e.g., you can do this, but you can’t do that. And if you do that, you may face discipline). Go back to my previous blog post, and you will some examples of those rules and restrictions.

The best policies, however, draw from both. They contain both guidelines and some rules governing conduct. The result is a social media policy aimed at building the company brand while also protecting the company’s legal interests. (This generally also means consulting with an attorney in preparing and implementing the policy).

 3. But before setting forth any rules or guidelines your policy needs to accomplish the following:

Explain that social networking activities may create unnecessary legal or business risk to the company (hence the need for a policy).

· Explain to your employees what social media is. Believe it or not, even in today’s tech age, some of them may not know.

· Explain that social networking activities may create unnecessary legal or business risk to the company (hence the need for a policy).

· Advise that the company reserves the right to monitor employee social networking activities. This is not to say that the company will automatically exercise that right. However, if employees are on notice that Big Brother may be lurking, then they are more inclined to use social media responsibly.

4. Here are some good guidelines. In terms of guidelines, I suggest incorporating the following into your social media policy: 

Emphasize that employee social networking activities should not conflict with any company policies and procedures (e.g., computer use, confidentiality)

·Emphasize that employee social networking activities should not conflict with any company policies and procedures (e.g., computer use, confidentiality)

·Explain your company’s values so that employees may hopefully add value.

·Counsel employees to take ownership of what they post online. This means steering employees away from making anonymous posts. Additionally, if employees post something that is inaccurate or in poor judgment, advise them to post a correction.

·Remind employees that they must maintain workplace productivity. There is a time and place for social media use, but it should not get in the way of job responsibilities.

·Keep it civil and use good judgment. In other words, think before you post.

5. Then again, I am a lawyer. So I’m still a stickler for the rules. And among the suggestions I give to my clients:

·Prohibit employees from using social media to harass or cyber-bully one another.

·Disparagement and defamation of the company is not tolerated.

·Employees may not make use of company logos or trademarks without prior consent from the company.

·Employees must abide by all copyright laws.

·Disclosure of proprietary or confidential information is not allowed.

·Employees who have personal blogs must use appropriate disclaimer. language when blogging about matters relating the company and/or the company’s industry. (For a good example, scroll back up to the top of this post.)

·Explain that violation of the social media policy may result in discipline up to, and including, termination of employment.

My suggestions, and those of Lee and Lauby, are certainly not the be-all and end-all to social media policy greatness. The ever-changing nature of technology suggests that at some point in the future, I may look back on this post and do another follow-up. However, one thing is certain. Now is the time to address employee use of social media.

Because social media is not going away anytime soon.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

Dems Ask to Keep Polls Open Later, Citing SEPTA Strike

By Amaris Elliott-Engel
Of the Legal Staff

The Democratic City Committee, Democratic district attorney candidate Seth Williams and the Black Clergy of Philadelphia all have requested that the election court extend the polling hours past 8 p.m. because of the SEPTA strike. Testimony has been heard on keeping the polling hours, but there hasn't been a ruling yet.

Tasha Jamerson, communications director for the Williams campaign, said that the strike called in the wee hours caught potential voters off guard and there is a concern that people who would have voted in the morning didn't get to the polls because of worries about how to get to work. And there also is a concern that "the commute home is going to be so much worse" and that Democratic voters, some of whom traditionally vote later in the day, might not make it to the polls if the commute home is nightmarish, Jamerson said.

3rd Circuit Rules Insurer’s Failure to Follow Best Practices Not Bad Faith As Matter of Law

Last month the 3rd U.S. Circuit Court of Appeals in a slip opinion ruled that an insurer’s failure to follow best practices does not give rise to a bad faith claim, affirming a summary judgment in favor of that insurer. 

In Smith v. Continental Casualty Co. (Slip Copy), Stacey and Marjorie Smith took an assignment of bad faith rights from their former financial adviser, James Sprecher, whom they had sued for negligence, breach of contract and negligent misrepresentation as part of a settlement with the adviser, according to the opinion. Sprecher had previously tendered his defense to his professional liability carrier, Continental Casualty Co., but Continental declined coverage under an exclusion that eliminated coverage for claims against Sprecher arising out of the sale of non-approved financial products.  Sprecher settled with the Smiths for $150,000 and assigned to the Smiths bad faith and breach of contract rights against Continental, the opinion noted.

The trial court, in a ruling by Judge John E. Jones III, granted summary judgment for Continental on the breach and bad faith counts.  In affirming the ruling, the 3rd Circuit affirmed the trial court ruling that an exclusion in the professional liability policy for liability arising out of non-approved financial products was a valid ground to deny Sprecher’s tender of defense and indemnity to Continental.  In disposing of the coverage issue as it had, the court also naturally moved on to affirm dismissal of the bad faith count and in so doing, emphasized the “clear and convincing” burden of proof that a plaintiff has in a bad faith case.  The court also confirmed the traditional two elements of proving a bad faith claim: the insurer lacked a reasonable basis for denying benefits and the insurer or recklessly disregarded such a lack of a reasonable basis.  The court specifically ruled:

“For the Smiths to succeed, there must be evidence from which a fact finder could conclude that Continental had no “reasonable basis for denying benefits” and that it knew of or disregarded the lack of a reasonable basis.  Here there is evidence of neither: Continental clearly did have a reasonable basis for the denial of coverage . . . and there is no evidence whatsoever to support the second prong.  While perhaps Continental should have spoke with Sprecher before it made a final coverage decision, a failure to follow best practices does not give rise to a bad faith claim.  Summary judgment is properly granted. “

Parenthetically, the court added that while ambiguities in insurance policies are held against the drafter, there were no such ambiguities present with respect to Continental’s denial in this case.

I view Smith as significant not so much the court’s analysis of the coverage claim, as that appears to be rather straightforward, but more so for the 3rd Circuit’s specifically addressing the plaintiff’s allegation that the insurer’s failure to speak with Sprecher before denying his request for defense and indemnity constituted a violation of the insurer’s own best practices, and was therefore bad faith.   I view it as significant because bad faith plaintiffs often attempt to make out bad faith cases based on a insurer’s failure to follow either the state insurance regulations or the insurers own claims guidelines.  The 3rd Circuit ruling in Smith is another in a rather long line of cases, especially on the federal level, holding that insurer’s deviation from their insurance regulations or its own claims guidelines is not sufficient clear and convincing evidence of bad faith.  The rationale given for such a holding is that such departures from protocol are as equally consistent with mistake as they are any alleged intentional misconduct.  See e.g., Employers Mutual v. Loos and Pittas v. Hartford Life Ins. Co.  See also Oehlmann v. Met Life Ins. Co.; Toy v. Metropolitan Life Ins. Co.; and Moss Signs v. State Auto Insurance Co.

To be sure, there can be circumstances in which an insurer’s failure to follow guidelines might be actionable. However, such circumstances would appear to be limited to situations where an insurer willingly buries its head in the sand to avoid garnering information that would lead to having to provide a benefit to a putative insured.  In such a case, however, there is more evidence than a mere departure from the insurer’s guidelines; rather, there is rather clear evidence supporting the second element of a bad faith claim, knowledge of a lack of a reasonable basis or a reckless disregard for the same.   

Charles Haddick
Dickie McCamey & Chilcote
http://www.dmclaw.com

PICA Calls for Abolition of Quarter Sessions, Sheriff and Register of Wills

By Amaris Elliott-Engel
Of the Legal Staff

The governmental authority that must approve the city of Philadelphia's budgets for fiscal soundness has added its voice to the growing call to abolish several of the independently elected row offices.

In a report issued Monday, the Pennsylvania Intergovernmental Cooperation Authority said that the Clerk of Quarter Sessions, the Clerk for Criminal Cases, the Register of Wills, the Clerk for Orphans' Court cases, the Sheriff's Office and the City Commissioners, which run the city's elections, all should be absorbed into either the court system or other agencies in order to save money.

The report noted the number of concerns raised about the management of the City Commissioners and Quarter Sessions. The report said that expenditure for Quarter Sessions is 57 percent higher than the median spending per capita for similar functions in other major counties.

And while there have been few concerns raised about performance by the Register of Wills, the report said that all the employees are exempted from the city's civil service system and "reinforces the stereotype of patronage and corruption." Expenditures for the Register of Wills is more than twice the median spending for similar functions in other major counties on a per capita basis, the report said.

The court noted that Allegheny County's elimination of six elective row offices in 2005 saved $1.2 million annually and led to improvements in service delivery.

20 Must-Read Articles on Social Media Ethics for Lawyers and Judges

As an attorney, public relations practitioner and social media enthusiast, I often present social media for lawyers CLE programs. Just recently, I was the course planner and moderator for a Philadelphia Bar Association Bench Bar CLE on the Ethics of Advertising, Marketing and PR. I had the wonderful opportunity to work with Hope Comisky, Joseph Prim and Paul Kazaras– all members of the Philadelphia legal community and all passionate about ethics and legal communications. Although we discussed the application of various Pennsylvania Rules including 3.6, 7.1 – 7.7 and 8.5, many of the questions and much of the conversation focused on social media.

The ethics of social media for lawyers and judges is a hot topic and it continues to evolve. In fact, there will be a full day program offered by the PBI titled, “Facebook, Twitter & Blogging…Oh MySpace!” The six-credit event will take place Nov. 10, and is being offered in both Philadelphia and Pittsburgh. To register, visit www.pbi.org.

So, in preparation for these two programs, I came across tons of relevant articles. Here is a list of 20 must-reads:

Ind. High Court Allows MySpace Entry as Evidence in Murder Trial
By Molly McDonough
ABA Journal
Oct. 16, 2009

http://www.abajournal.com/news/ind._high_court_allows_myspace_entry_as_evidence_in_murder_trial/

Staten Island Criminal Court judge to be transferred to Manhattan after Facebook postings, sources say
By John M. Annese
Staten Island Live Online
Oct.15, 2009

http://www.silive.com/news/index.ssf/2009/10/criminal_court_judge_to_be_tra.html

U.S. Seeks to Restrict Gift Giving to Bloggers
By Amy Schatz and Miguel Bustillo
The Wall Street Journal
Oct. 6, 2009

http://online.wsj.com/article/SB125475547130664753.html

DOJ is on Twitter & Tweeting for AG Eric Holder, Too
By Martha Neil
ABA Journal
Oct. 6, 2009

http://www.abajournal.com/news/doj_is_now_on_twitter_tweeting_for_ag_eric_holder_too/

Pretexting, Legal Ethics and Social Networking Sites
By Ken Strutin
Oct. 5, 2009

http://www.llrx.com/features/pretexting.htm

More on the legal ethics of social networking: investigating opponents
By Alvin E. Mathews, Jr.
Lexology.com
Oct. 1, 2009

http://www.lexology.com/library/detail.aspx?g=97c38cce-18ed-40a8-a64e-df978984aea5

Social Networks May 'Leak' Personally Identifiable Information
By Wendy Davis
MediaPost News – Online Media Daily
Sept. 25, 2009

http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=114344&passFuseAction=PublicationsSearch.showSearchReslts&art_searched=Social%20Networks%20May%20%27Leak%27&page_number=0

Social Networks and Personal Injury Suits
By Robert S. Kelner and Gail S. Kelner
New York Law Journal
Sept. 24, 2009

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202434026615

Attorneys say companies can monitor employee use of sites, but they may face repercussions
By Mike Sunnucks
Phoenix Business Journal
Sept. 21, 2009
http://phoenix.bizjournals.com/phoenix/stories/2009/09/21/focus1.html#

Too Much Information: Blogging Lawyers Face Ethical and Legal Problems
By Debra Cassens Weiss
ABA Journal
Sept. 14, 2009

http://www.abajournal.com/news/too_much_information_blogging_lawyers_face_ethical_and_legal_problems/

A Legal Battle: Online Attitude vs. Rules of the Bar
By John Schwartz
New York Times
Sept. 12, 2009

http://www.nytimes.com/2009/09/13/us/13lawyers.html?_r=2

Social Networking Sites and Litigation
By Mitchell H. Rubinstein
Adjunct Professor Law Blog
Sept. 11, 2009

http://lawprofessors.typepad.com/adjunctprofs/page/8/

Ethical Issues to Consider When 'Friending' Witnesses Online
By Mara E. Zazzali-Hogan and Jennifer Marino Thibodaux
New Jersey Law Journal
Sept. 1, 2009

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202433644757&hbxlogin=1

Social media and legal ethics – May an Illinois lawyer list his or her "Specialties" On LinkedIn without running afoul of Illinois RPC 7.4?
By Helen Gunnarsson
September 2009

http://www.isba.org/ibj/2009/09/438_lawpulse.html

Our Linked-In Judiciary
By Robert J. Ambrogi
Legal Blog Watch
Aug. 20, 2009

http://legalblogwatch.typepad.com/legal_blog_watch/2009/08/our-linked-in-judiciary.html

Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches #ABAChicago
By Molly McDonough
ABA Journal
July 31, 2009

http://www.abajournal.com/news/facebooking_judge_catches_lawyers_in_lies_crossing_ethical_lines_abachicago/

ACLU fights judge’s Facebook comments ban – Woman was ordered not to post on site about brother’s custody battle
Associated Press / MSNBC
July 23, 2009

http://www.msnbc.msn.com/id/32103212

Legal marketing ethics in a Web 2.0 world
By Leora Maccabee
Lawyerist.com
July 17, 2009

http://lawyerist.com/legal-marketing-ethics-web-2-0/

A Friend in Deed
The Disciplinary Board of the Supreme Court of Pennsylvania – Attorney Newsletter
July 2009
http://www.padisciplinaryboard.org/newsletters/2009/july.php
 
Mind the Ethics of Online Networking
By C.C. Holland
Special to Law.com
Nov. 6, 2007

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1194257030032

Gina F. Rubel, Esq., is the owner of Furia Rubel Communications, Inc., a public relations and marketing agency with a niche in legal communications. A former Philadelphia trial attorney and public relations expert, Gina is the author of Everyday Public Relations for Lawyers and the co-author of 6 Essentials for Success in Business and Life. Gina and her PR firm have won numerous awards for legal communications, public relations, media relations, strategic planning, corporate philanthropy and leadership. She maintains a blog at www.ThePRLawyer.com and is a regular contributor to The Legal Intelligencer Blog. You can find her on LinkedIn at www.linkedin.com/in/ginafuriarubel or follow her on Twitter at http://twitter.com/ginarubel.  For more information, go to www.FuriaRubel.com.

 

 

Litigating the Bad Faith Case: The First 30 Days

In answering a question about keys to successful outcomes in insurance coverage and bad faith litigation at a recent conference, it occurred to me there are several critical elements, which, if taken care of within the first 30 days of any bad faith case, will enhance the prospects of a successful outcome. I offer a list of those elements below, but I would love to hear any ideas our readers have on the same topic; please e-mail them to me at chaddick@dmclaw.com.

Here are some of the more important things that came to mind:

1. Where Are We Litigating?

Jurisdiction and venue are at times overlooked in bad faith cases. To those lawyers representing insureds, they have the first opportunity to select jurisdiction and venue and therefore, an assessment of which setting would be more favorable to the insured is of utmost importance. The defendants may have a say also, however, inasmuch as a bad faith case may be removable by the defendant to federal court if the requirements under the federal removal statute are met.

2. Immediate Assessment of Pleadings.

The scope of the bad faith case will be defined, now and later, by the pleadings. Are there any matters set forth in the complaint or defenses set forth in the answer that are susceptible to legal challenge, and which might be stricken at the outset? While often this decision must be made in a very brief amount of time, it is nevertheless critical, inasmuch as both insurers and insureds should try to define the issues in a case in a way that works to their respective advantages.

3. Information Gathering.

Before you begin your review in a bad faith case, whether on behalf of an insurer or insured, you must know what to review, and you must be reasonably certain that all important information has been obtained. Counsel for the insured will, as part of their initial interview and assessment of the case, obtain from their her client as much documentation as possible concerning both the insured's coverage at issue and process of the insurance claim, which is the subject of the bad faith suit. So, counsel for insurers must make sure they immediately receive all relevant documentation, especially the entirety of the claims file, usually composed of activity logs, claim documents, correspondence and other documents, whether paper or electronic.

4. Intensive Document Analysis

Both sides in bad faith litigation will benefit from their counsel's early, aggressive and thorough analysis and review of the claims documentation at issue. In counsel's reviewing the documentation at least two purposes are served. First, counsel can make an early assessment of the strengths and weaknesses of the bad faith case. Second, a thorough review of the claims records produces a roster of knowledgeable individuals at the insurance company who should be thoroughly interviewed to complete the initial assessment process, or in the case of insured's counsel, who should be deposed. Information begets information.

5. Ask Questions.

Once the documentation has been reviewed, counsel for insureds should meet not only with their client, but potentially the insured's agent to determine whether or not any useful information can be obtained from the insurance agency that procured the policy.

The task of interviewing is generally more comprehensive for those lawyers representing insurers in the early stages. Each and every individual in the claims process, from the claims adjuster to the claims manager and possibly higher if individuals higher up in the chain of command who were involved in the claims decision must be thoroughly questioned regarding the documents, and the claim itself. Inconsistencies in the documents can often times be explained, or problem spots identified and counsel may receive additional information which would prompt them to raise additional claims and defenses, or adjust their assessment of the case.

6. Get More Information and Continue to Refine Your Thinking.

Relatively quickly in the litigation process, counsel should issue interrogatories and request for production of documents to the other side and continually try to fill in as many informational gaps as possible regarding the insurance claim at issue. In addition, third parties such as insurance agents, or other witnesses with important knowledge can be subpoenaed for their documents, and possibly their depositions as well. The receipt and analysis of these documents oftentimes falls outside of the initial 30-day period, but to the extent any requests for information can be made within the first 30 days, they should be. Receipt of the information in response to such requests serves to allow counsel for insurer and insured to continue to refine their assessment of the merits of the bad faith case.

7. Feed the Information Back to Your Client.

Bad faith counsel should, at or near the end of the 30-day period, be able to provide their client with a reasonably solid assessment of the relative strengths and weaknesses of the positions in the bad faith case. For those counsel representing insurers, they are oftentimes required to furnish comprehensive initial suit analyses and chronological analysis of the claims documents within the first 30 to 45 days following assignment.

Good initial reporting will include the results of interviews of key claims personnel, in the case of bad faith defense counsel.

What's So Important About the First 30 Days?

The more information counsel develops within the first 30 days of accepting the bad faith suit assignment, the better able she is to assess the prospects for the case and begin handling it efficiently. The above list will assist counsel in getting the 30-day ball rolling.

Charles Haddick
Dickie McCamey & Chilcote
http://www.dmclaw.com

McCaffery: Elections Needed to Level the Playing Field

By LEO STRUPCZEWSKI
Of the Legal Staff

Under the suit, there are tattoos; inside his garage, there are four bikes.

And before there was a bald head, Pennsylvania Supreme Court Justice Seamus McCaffery had hair down to his shoulders, a beard and an earring.

None of it quite added up to becoming one of the top seven jurists in the state, he told a group at Villanova University School of Law Thursday night, but there he was.

"I'm electable, I'm not appointable," McCaffery said during an hour-long event co-sponsored by the Federalist Society's Philadelphia and Villanova chapters. "In the federal courts, judges are appointed. It's highly unlikely someone with my background would get appointed. There's all these different blocs we need today. Are you of this flavor, are you of that flavor? In the election world, I think it gives people like me, people like you, kind of a even playing field."

Though there is a call for merit-based selection of judges in Pennsylvania, McCaffery said polls show the majority of people in the state "like electing their judges."

"The reality is this," he said. "We used to appoint judges … it was so corrupt, it was outrageous."

"If you looked at members of other benches, you could see, 'Well, this one's married to this one, this one's connected to that one," McCaffery said. "If you dug enough, you could see how they were hooked in and why they were appointed."

In what felt like a mixture of a behind-the-scenes program and a campaign event, the former Philadelphia beat cop discussed his background, it's influence on his judicial philosophy and his goals as a state Supreme Court justice. He showed up early, stayed for a bit after, shook hands and socialized. He concluded the event by fielding a series of questions -- including one about a possible run for Senate.

Though we won't delve into all the details in this blog post, we'll boil McCaffery's answer down to this:

"I'm on the Supreme Court, man. You have to study what I say," he said. "This is cool stuff."

Read more about McCaffery's speech and question and answer session in Monday's Legal.

.

Courts Prepare for Possible SEPTA Strike

By Gina Passarella
Of the Legal Staff

While Phillies fans and commuters wait with bated breath to see whether local trolleys, subways and buses will be running this weekend and into next week, SEPTA and the Philadelphia Common Pleas Court are moving forward as if a strike by SEPTA employees was a foregone conclusion.

At the request of SEPTA’s general counsel, Nicholas Staffieri, President Judge Pamela Pryor Dembe issued an order today continuing all arbitrations and trials involving SEPTA “for the duration of the strike and four days after it ends.”

While there is no limiting language in the order that would make it effective only if a strike were to occur, Staffieri said it is only a precaution and issued in “anticipation of a work stoppage.” He said similar, if not identical, orders have been issued many other times when a strike looked to be imminent, with the latest instance in March 2009.

“I hesitated to make the phone call [to Dembe,]” he said, adding that he didn’t want to sound any false alarms.

But with the way things are going, he had to be prepared for court on Monday if there was a strike over the weekend, Staffieri said. Many of the witnesses SEPTA would call in litigation are hourly workers who wouldn’t be able to leave the picket lines to make it to trial. And jurors would have a difficult time getting to the courthouse if there was a strike, he said.

While he said he wasn’t pleased to potentially have court cases held up over this, it would be difficult to move forward with cases in a strike environment.

Dembe’s order also says any orders issued in matters where SEPTA or an employee represented by its counsel is a party will be stayed through the duration of any work stoppage and for 20 days after. The order also stops the court from issuing defaults during the strike and 20 days after for failure to answer a complaint or comply with a discovery order.

Do Jurors Really Need to Like Your Witnesses?

Don’t get me wrong, it definitely helps, but is it possible that we have overstated the importance of witnesses being likable? In most instances, it is true, jurors will find it easier to believe or find in favor of someone they like. Sometimes, though, we may be faced with a client or a witness who is just not going to relate well to the Average Joe. Trying to use witness preparation tactics to force such a person to be “likable” or to behave in a manner inconsistent with who she is will not only fail, but will most likely make her appear dishonest.

A good example of this issue involved an extremely contentious contract dispute case between two companies. I was working for the larger company in the dispute. Our key witness was the CEO. This witness was a very wealthy and very successful businessman. He was the kind of guy people didn’t like, but they certainly respected. He was excellent at running a business. He was not excellent at relating to people. For a witness like this, the critical component of witness preparation was not in trying to make the jurors like him. Instead, the critical component was to have these jurors respect him and understand that if you had a serious business to run, this was the guy you wanted to run it. He dotted his i’s and crossed his t’s. While not warm and fuzzy, he was thorough, tough and, most of all, honest.

For this witness, honesty wasn’t just in the testimony he gave about the contract dealings at issue in the case, but it was in being honest about who he was. In fact, the trial team took underscoring who our witness was a step further. Even the board members of the company admitted on the stand that our witness was not the easiest personality to deal with, but, boy, did he know how to run a business with integrity.

This is absolutely not to suggest it is OK to forgo behavioral work with witnesses when they are not the kind of folks who will win jurors’ hearts. It is having the right focus in witness preparation that is critical. Witnesses need to realize that their behavior in the courtroom is the only information jurors will have about how they behave in their lives/businesses.

In the example above, if our CEO did not respect or follow the rules of the courtroom (as some high-powered business people tend to do with a “my way or the highway” disposition), he would have been perceived as someone who did not follow the rules in business. Likable or not, that would have been detrimental to his case. Specifically, our witness needed to show that he was a “rule follower” by answering the questions asked without talking through or over people; by addressing the court with respect; and by being forthcoming, straight forward, clear and concise. He did all of those things. The jurors noticed. As predicted, they didn’t like him personally, but they believed that he was a good businessman who followed the rules of fair business dealings. He won their respect and their verdict.

So, the point is this: All the witness preparation in the world can’t make a person into something he isn’t. If you try, jurors will see right through it. What is important, though, is that you understand the strength of who your witness is, and let your preparation efforts work to highlight an image of your witness in a manner that is consistent with the case story. It is critical to understand and remove the barriers to the likable person your witness is, if that is the case. Otherwise, sometimes you have to let a duck be a duck.

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com