The Legal Intelligencer Blog

New Special Master In Foxwoods Case

By Leo Strupczewski
Of the Legal Staff

The state Supreme Court has named Philadelphia Common Pleas Court Judge John W. Herron as the new special master in the Foxwoods Casino case.

According to an order from the high court, Herron replaces former Commonwealth Court Judge Joseph F. McCloskey, who retired. McCloskey was serving as a senior judge.

As special master, Herron will have “full authority” to resolve disputes in the case related to permits, approvals, licenses and other city authorizations related to Foxwood’s gaming license.

Herron is also the special master for issues related to the SugarHouse Casino.

The Supreme Court appointed him to that position in March after it ruled Philadelphia had to issue HSP Gaming a foundation permit to begin building the planned SugarHouse Casino.

The justices said that Herron would handle future disputes related to SugarHouse. McCloskey was previously appointed to a similar position for the Foxwoods Casino.

Supreme Court Won’t Hear Workers' Comp Act Exclusivity Case

By Zack Needles
Of the Legal staff

In a per curiam order, the Supreme Court has denied allocator in a case in which a man rendered quadriplegic in an accident while driving his work truck claimed economic damages as a result of his employer allegedly destroying parts of the vehicle and hindering his ability to sue the truck manufacturer.

In April, the state Superior Court reversed a Philadelphia trial court judge, ruling that plaintiff Marton Minto was not barred by the exclusivity provision of the Workers' Compensation Act from suing his employer, J.B. Hunt Transport Inc.

Minto didn't allege damages against his employer for injuries he suffered in the March 2002 accident, but claimed economic damages as a result of J.B. Hunt allegedly destroying evidence he might have used in his case against products liability defendants.

The Superior Court was asked to review the issue of the exclusivity clause after Philadelphia Common Pleas Court Judge Sandra Mazer Moss granted J.B. Hunt's motion for judgment on the pleadings, finding the clause barred Minto's claims.

State Supreme Court Affirms Decision Striking Pa. Mercury Reductions

By Peter Hall
Of the Legal Staff/Law Weekly

The state Supreme Court has affirmed a Commonwealth Court decision that declared invalid a Pennsylvania Department of Environmental Protection rule designed to reduce mercury emissions from coal- and oil-fired power plants.

The decision in PPL Generation v. Commonwealth, handed down late Wednesday, came about a week before the rule was due to take effect Jan. 1.

In a single-judge decision in January, Commonwealth Court Judge Dan Pellegrini found the Pennsylvania mercury rule invalid because federal law precludes state regulation of pollution sources listed in the federal Clean Air Act and regulated by the U.S. Environmental Protection Agency.

Although the federal government shifted responsibility for regulating mercury emissions to the states in 2004, the U.S. Court of Appeals for the D.C. Circuit overturned the regulatory scheme last year in New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008), a challenge by various environmental groups and state governments.

Because the Pennsylvania rule was created and promulgated as an alternative to the federal regulation’s cap and trade scheme – in which states could trade credit for mercury emissions – it became invalid once the federal regulatory scheme was struck down.

In affirming the Commonwealth Court decision, the Supreme Court, in an opinion by Chief Justice Ronald D. Castille, rejected arguments by the DEP that it is entitled to relief under numerous principles of administrative law and that the appellants waived any challenge to the rule because they failed to object upon its promulgation.

“There is no dispute that mercury is a pernicious pollutant, and limiting and controlling mercury emissions through valid regulation is desirable.  Yet, logically the PA Mercury Rule simply cannot stand following  New Jersey.  The Commonwealth’s arguments, at heart, evince an understandable, but ultimately legally weak, frustration at the bind in which the Commonwealth is placed when a challenge in the federal regulatory system and resulting litigation introduces this kind of uncertainty respecting the role the states may play.  By the same token, however, those subject to a regulatory scheme where federal authorities can and have acted, should not have to choose between two schemes at their peril.  At the end of the day the Commonwealth simply cannot prevail on the arguments forwarded here,” Castille wrote.

 

It’s a Holiday Miracle

Congress has fallen below even the lowest expectations of tax practitioners.  It’s like a (bad) dream come true.

For the past eight years, I’ve been describing our estate tax system to clients: We’ll have gradually lowering rates, and the exemption will eventually rise to $3.5 million.  Then, if you can believe it, there will be one year, 2010, when the tax will disappear.  The next year, the tax will reappear, at the higher rates and lower exemption that existed before the law was changed.  Then, I would explain that Congress would of course have to fix the law because that made no sense.  We would laugh, and I would send them a bill.

But time passed and the law wasn’t fixed.  Congress flirted with repeal of the estate tax, but never reached that point.  It was assumed that they would do something to avoid this strange sequence of tax law changes, which originated in artificial budget constraints.  There was some continued grumbling about repeal, mostly from people trying to get the attention of wealthy donors.  Earlier in this month, it appeared that there would be a one-year extension of the current law ($3.5 million exemption, 45 percent tax rate), then maybe an extension of a few months.  Now, the effort to extend the law has been abandoned for the year, and the estate tax is scheduled to be reduced to zero in 2010. 

Leaders in Congress promise that the law will be changed early in the year.  But that means that the law would have to be amended retroactively to the first of the year.  Otherwise, the lucky people who die in the first week (or actually their families) would have a windfall for no particular reason.  Congress has the power to pass tax laws on a retroactive basis, at least back to the beginning of the year, but every time this happens, there are lawsuits, and we can expect those again, but it’s likely that a retroactive change would be upheld.

The absence of an estate tax in 2010 has another consequence.  Under the current law, when someone dies, his or her assets are stepped up in basis to their date of death value, which is a valuable tax benefit.  Without an estate tax, assets won’t be stepped up.  Instead, those who inherit will carry over the basis the decedent had, which will add to the complexity of the tax law administration and increase tax liabilities on the heirs, in many cases more than the estate tax would have done.  When carryover basis was added to the law in the 1970s, it was so complicated that it had to be repealed.  Let’s hope that a new year will bring a resolution of this problem.

Robert H. Louis

DA's Office Won't Prosecute Berry, Who Will Return to Hear Criminal Cases

By Amaris Elliott-Engel
Of the Legal Staff

The Philadelphia District Attorney's Office will not file criminal charges against Philadelphia Common Pleas Judge Willis W. Berry Jr. for running his real estate business out of his judicial chambers, District Attorney Lynne Abraham announced in a press release Thursday evening.

The announcement clears Berry's return to the criminal division, Trial Division Administrative Judge D. Webster Keogh said.

Berry was suspended from the bench for four months by the Court of Judicial Discipline for bringing the judicial office into disrepute by handing his rental properties out of his chambers, including having his judicial secretary handle the real estate business.

 Berry's attorney, Samuel C. Stretton, said the judge completed his suspension this week and is taking vacation time until Jan. 4. Prior to his suspension, Berry recused himself from hearing criminal cases. The District Attorney's Office asked Berry to recuse himself from hearing criminal cases because the Court of Judicial Discipline's opinion stated Berry had committed a '"crime'" by diverting his secretary's time and the other resources of his public office to a private venture.

Abraham scored the CJD in her press release, saying the punishment meted out to the judge was a mere "slap on the wrist," but said that if there was not clear and convincing evidence to remove Berry from office in the Court of Judicial Discipline, then there is not proof beyond reasonable doubt to convict him of theft of services in a criminal court.

Part of the reason there is not proof beyond reasonable doubt to convict Berry, the release said, is because the investigation proved that Berry compensated his former judicial secretary, Carolyn Fleming, from his personal bank account for her extra work, including paying her gas, electric, water, phone, cable and credit card bills. Berry paid about $25,000 of Fleming's expenses from 2003 to 2007, the release said.

 

7 Ways Lawyers Can Capitalize on Media Coverage

As a public relations practitioner, I am often asked what a firm or attorney should do AFTER they have received media coverage. It is so important to understand that not everyone you want or expect to see the coverage will see it the first time around. So, if there are people who you would like to see the coverage, make sure you share the new with them proactively. Here’s how:

1. If you have advance notice that you (or your firm) are going to be mentioned in a news story or article, let people know. You can send them an e-mail, post a notice on your Web site, update all of your social media statuses (such as LinkedIn, Plaxo, Facebook, MySpace and Twitter), add a note to your e-mail signature or just pick up the telephone and let people know in advance.

2. If you do not have advance notice of the coverage, let people know after the fact. Send them a link using all the same tactics listed in No. one, minus the telephone.

3. If your coverage is from a print publication, you can also purchase reprint rights and share the reprints via e-mail, mail and on your Web Site. They can be used as a direct mail piece, as handouts at events, as inserts in company collateral material, in your front office brag books, in your media kits, shared via Legal Onramp, JD Supra and Martindale Connected, mounted on your office walls and in so many other ways.

4. Include mention of the media coverage in your firm newsletter or e-newsletter with links when possible.

5. If your coverage is from TV news, purchase copies of the clips and add them to your firm’s Web site. Create a channel on YouTube. When adding to YouTube, be sure to include keywords in the description including your firm’s name.

6. Do not forget all the audiences who care about what’s happening at your firm. They include: clients, prospects, vendors, strategic partners, employees, colleagues, alumni offices, boards on which you participate, associations to which you belong, other members of the media, friends and family.

7. If you or others you know maintain relevant blogs, share your media coverage there and ask other bloggers who share relevant content to do the same.

Proactive sharing your media coverage is a great PR tool. It will increase the buzz, generate awareness, build a solid corporate reputation, and assists in communicating your news to your target audiences. The more often these audiences see the great work you and your firm are doing, the more likely it is that they will remember you when searching for legal services.

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. 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.

Since When Do Jurors Hate Companies Just for Being Companies?

To Be or Not to Be … a Company

I see it when I am working with both plaintiffs and defendants.  It is a belief often held on both sides of litigation, and, in my experience, I find it completely untrue. What is the belief? That jurors hate companies just for being companies. That they believe profitability is evil -- no exceptions.

The truth is that most reasonable folks understand that the nature of American business is about profitability. Profitability makes companies successful. It creates jobs. It is good for our society. It is the American way.  The net effect is that jurors do not automatically believe that a company is bad for being a company, but want to understand how a particular company behaved in a way that is either consistent with or deviates from expectations of how a company should behave. Whether those expectations are reasonable or unreasonable …well, that is a topic for another posting. 

Don’t get me wrong, there certainly are folks in the world who will mistrust anything a company says. These folks, though, are not the norm. Moreover, they will more often than not reveal themselves in jury selection and be struck for cause.  Therefore, plaintiffs can’t rely on these folks to be in the jury and defendants should not be unnecessarily fearsome about their presence on a panel.

Implications for Trial

So what does this all mean for a jury trial? Well, there are several implications that can be described through mistakes I have seen made by both sides of litigation. First, I have seen plaintiff counsel provide presentations to juries about evil corporations and “profits over people” in cases in which there was simply no indication that the company ever intentionally did anything wrong, mistake made or not.

Overstating the “evil” organization may actually have a negative effect for plaintiffs, raising the bar for what the plaintiff has to prove. It takes a lot more to prove that a company was an evil organization with a devious plot to hide its wrongdoings than to tell a story of a company that made an error that caused the plaintiff harm.  I have often seen jurors say in focus groups that “business is business” and that “Company X never meant for this to happen.” When plaintiff has made the argument that Company X purposely ignored safety to get more profit, “purposely” becomes what jurors want proved -- not because that is what the law says, but because that is what the plaintiff said. 

On the corporate defense side, I have seen folks fear the corporate image to the extent to which they try to make the company seem like it is not a company. For example, I worked on a case in which the defense counsel wanted the founder and CEO of a multibillion-dollar enterprise to tell the jury that he founded the business for purely altruistic purposes --- to provide a helpful service to the community. Well, that may be part of it, but no one will believe that this businessman decided to get into such a lucrative business without the goal to make profit. Businessmen like profit. Trying to convince folks of anything different simply didn’t seem honest. In this case, instead of running away from the company’s profitability (which seemed to jurors as if there was something wrong with the manner in which that profitability was attained), we got a better response by embracing the company’s profitability and growth in a manner that was responsible and considerate of consumers. Good business is profitable. That is part of what makes it good business.

The moral of the story is that both sides need to make arguments congruent with juror expectation/perceptions, keeping in mind that perceptions are not typically negative toward companies, but do contain high expectations of them. For the plaintiff, attacking the company for no other reason than the fact that it is a company will likely not fly. There has to be something about the company’s actions that deviate from what folks perceive as normal corporate behavior. For the defense, there is no reason to run away from the corporate image. In fact, I see defendants do better when they embrace the corporate image in a manner congruent with juror expectation, illustrating how it is a company that knows its business and runs that business well. Contribution to the community is certainly a part of the “good company” story, but it is not the whole thing.   

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

 

Phila. Mortgage Foreclosure Program Receives City Livability Award

By Amaris Elliott-Engel
Of the Legal Staff

As Philadelphia leaders accepted another award in honor of a court program that requires a mediation conference between homeowners and lenders before foreclosure cases can go to sheriff's sale, program leaders are also reporting there are more borrowers who save their homes from foreclosure than there are homeowners that don't save their homes from foreclosure after going through the program.

Since the official inception of the mortgage foreclosure diversion program in Philadelphia Common Pleas Court in June 2008, 1,800 homeowners have had their homes saved from foreclosure, said Paul D. Chrystie, director of communications for the city Office of Housing and Community Development.

Nine hundred homes went through foreclosure through August 2009. Statistics from the Sheriff's Office aren't available after August, Chrystie said. So he extrapolated that another 200 or some homes have probably gone to foreclosure since August based on past experience. With those statistics, three out of every five homes going through the foreclosure program have been saved from foreclosure, Chrystie said.

There are 3,500 homeowners who are now going through the program, Mayor Michael Nutter said during a press conference Tuesday.

Nutter, Philadelphia Common Pleas Judge Annette M. Rizzo, who presides over the program, and other stakeholders in the program accepted an award from the U.S. Conference of Mayors. The group's city livability program honors mayors and their city governments for developing programs that enhance the quality of life in urban areas. Over 200 cities applied for the city livability award this year, according to a U.S. Conference of Mayors official.

For those homeowners who go through the program and can't avert foreclosure through a workout, the program allows them "a graceful exit with dignity," Rizzo said. The program also allows for foreclosure "postponement with purpose," Rizzo said.

Ethics Task Force Calls for Independent Inspector General, Other Tweaks to Young System

By Amaris Elliott-Engel
Of the Legal Staff

After 14 months of meetings, a task force on ethics and campaign finance has recommended multiple tweaks to the city's still-young ethics regime, including making the Inspector General's Office independent from Philadelphia's mayor.

The task force was convened by Mayor Michael A. Nutter in October 2008, and the task force's members included appointees selected by City Council President Anna C. Verna and the Philadelphia Bar Association.

Nutter made no promises today about what reforms recommended by the task force he'll champion, and Nutter said he had not yet discussed the report with Verna.

Among the task force's 36 recommendations:

- Because of the fact that Philadelphia is the only large American city without any regulation of lobbyists, the task force recommended that a city law be passed to require lobbyists to register annually.

- The Board of Ethics should receive more financial support.

- Restriction on political activity should be expanded to boards that exercise significant power over the city, such as the Zoning Board of Adjustment and the Board of Revision of Taxes.

- City financial reports need to be on a more user-friendly Web site.

- Allow Philadelphia Police Department officers to make voluntary campaign contributions since a court ruling overturned a similar ban on contributions by workers with the Philadelphia Fire Department in 2003.

Despite the expansion of ethics regulation, partly because of Nutter's work on the issue as a city councilman, Nutter said more work is needed. Ethics is "an every day, every week, every year, lifetime" activity, he said.

Several lawyers were involved in the task force, including Michael Schwartz, a partner at Pepper Hamilton; Nolan Atkinson Jr., a partner at Duane Morris; Stephanos Bibas, a professor of law at the University of Pennsylvania Law School; Brian McCormick, a partner at Sheller; and Stephanie Resnick, a partner at Fox Rothschild.

Reaching for Greater Efficiency in Criminal Justice Administration

Thanks once again to Mike Meehan of Eckert Seamans Cherin & Mellott. With his assistance, I met recently with Administrative Judge D. Webster Keogh about the new challenges in criminal justice administration resulting from the well-publicized budget woes of the Court of Common Pleas of Philadelphia County.

It’s old news that budget reductions have stretched the court thin in many areas of administration, including courtroom staffing and probation officers. Because of hiring freezes and staff lost through attrition, the workload must be reallocated among the remaining employees. At some point in time, the critical mass becomes too "massive," even though the work to be done remains critical. Keogh said he is concerned about the overall level of supervision and efficiency under these conditions.

The relationship between high unemployment and increased crime rates is widely accepted. As the number of criminal cases increases, so does the pressure on the supervision and administration of those cases. Traditionally, the Philadelphia District Attorney’s Office has tried a greater percentage of cases than the counties surrounding Philadelphia, at a rate of 20 percent to 25 percent, while the rest of the counties try only 3 to 4 percent of cases. It could be argued that the statistics from the counties are not comparable (i.e., mixing statistics on misdemeanors and felonies in other counties with felonies alone in Philadelphia County) or it could be that long-standing traditions in the counties favor plea agreements. Regardless of the reason, Philadelphia courts have a full plate of criminal matters proceeding to trial. Keogh is working to streamline the backload.

Keogh is both enthusiastic and hopeful about the new criminal discovery court, which is poised to start up in January. The intent is for a judicial officer to address discovery issues early, after the case emerges from arraignment. According to Keogh, up to 63 percent of listed cases have outstanding discovery issues as their trial date arrives. If a case listed for trial has unresolved discovery issues, the case will not be tried on schedule. This creates enormous inefficiencies and clogs trial schedules, but it also results in actual added expense to the judicial system. Prosecutors need to subpoena witnesses for trial, and it is extremely inconvenient, time consuming, costly and affects public safety to have witnesses take time off from work only to learn that the trial has been continued. This is particularly true for pulling police officers from duty work. It is one thing to leave "the beat" to give trial testimony, it is yet another to forego police work only to wait in a courtroom for a trial to be rescheduled. Keogh anticipates that discovery court will allow discovery issues to be resolved earlier, so that the cases will be ready when trial is scheduled. Avoiding trial continuances will reduce witness costs, including unnecessary police overtime expense. Other jurisdictions have dealt with the issue of resolving discovery disputes in different ways, but Keogh is not aware of any other court that has instituted a criminal discovery court to address discovery issues in a proactive manner.

Keogh also advocates the use of video hearings or video transmissions for certain proceedings make better use of the court’s financial resources. Incarcerated defendants should consider the use of video transmission for guilty plea hearings or Post-Conviction Relief Act proceedings. These hearings are not lengthy, and the use of video eliminates the cost and risk of transportation to and from the penal institution. Most lawyers are acquainted with video transmission in one form or another, and can attest that it is more than adequate and a much cheaper option in the right setting. Keogh said he believes that a defendant’s presence by video transmission is fully adequate and is actual preferred for many hearings. The cost savings in 2009 from the use of video transmitted hearings exceeds $387,793. This figure does not include the tangible -- but more difficult to measure -- increase in public safety resulting from eliminating the transportation of incarcerated defendants for five minute hearings. Defense lawyers should consider video transmission as a lower cost and safer method for these types of hearings.

Charlotte E. Thomas
Duane Morris LLP
cthomas@duanemorris.com