The Legal Intelligencer Blog

The Power of One

By Melissa M. Gomez, Ph.D.

One persuasive person can make all the difference.  That is why, in jury selection, I not only focus on those characteristics that will make jurors biased against and unwilling to find in favor of my client, but also those that give that person the kind of charisma that will cause her to be a persuasive thought leader in deliberations.

In his book, “The Tipping Point,” Malcolm Gladwell discusses these kinds of people and their power to bring other people to act, to adopt an idea or to purchase a product. He calls them “salesmen” because that is what they are. In your jury, they these are the folks who sell a case idea or concept in such an effective manner that other jurors will follow.  Having a person like this on your jury is like having a jury of one person. You convince her, she will convince everyone else.  If she is against you, she will turn everyone else against you. All I have to say is that you need to be pretty darn sure she will find for you to keep her on the jury. For me, if I am not positive about how she will go, she will be my number one strike (or, more likely, my final strike if decide to play chicken with opposing counsel).

I recently conducted a focus group in which one of these powerful folks participated. In deliberations, he did not jump out of the box, yelling his opinions. He was too effective a salesman for that. Instead, he let someone else be the foreperson, waited his turn to speak, and then took up the bulk of deliberations with a beautiful soliloquy about what really happened in the case. He spoke with a certain grace and sophistication that drew people in. After that speech, not another opinion independent from his interpretation was provided by any of the other jurors. The salesman had sold and the rest of the jurors were buying.

At the end of their deliberation, I sat down and discussed the case with the group, actively trying to get opinion from the other jurors. They repeatedly referred back to what the salesman had said, repeating his words and starting sentences with “Well, I just agree with Joe” or “As Joe said…”. 

The good news is that a powerful salesman will more likely than not make herself known in jury selection if given a chance. She will speak with confidence in voir dire and happily provide opinion.  For this reason, if you have the opportunity, it is always helpful to ask questions that are open-ended. Getting a sense of communication styles by letting jurors speak freely will give you a better picture of confidence, charisma and eloquence-- the telltale signs of a salesman.  Getting “just the facts” in voir dire may be helpful to identify basic characteristics in your juror profile, but hearing a voice lets you know more about who a person is from an interpersonal standpoint.

One powerful person can make all the difference.

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 close to 200 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

FJD's Drug Treatment Court Selected as Model for Others

By Amaris Elliott-Engel
Of the Legal Staff　

The state's first drug treatment court, Philadelphia Municipal Court's Treatment Court, has been selected by a national body as a model for other courts striving to treat defendants' substance abuse problems, according to a First Judicial District press release.

The Municipal Court's Treatment Court was selected as one of 10 "national mentor courts" by the National Drug Court Institute in conjunction with the Bureau of Justice. In the project, Philadelphia's treatment court and the other nine courts will serve as training sites for other jurisdictions seeking to implement substance abuse treatment practices.

The mentor courts will be test sites for the best practices for treatment of defendants with substance-abuse problems. NDCI hopes that through the mentor court program the implementation of new research projects in the field of drug courts can be reduced by months or even years.

NDCI provides research-focused training and technical assistance to court officials who run problem-solving courts, according to its Web site.

A Survey of Significant Bad Faith Cases From 2009

As we approach the start of summer 2010 in Pennsylvania, I thought it might be interesting with that tiny big of distance to take a quick sample of significant bad faith cases from around the country decided in 2009. 

North Dakota:  What Are The Fundamental Elements of Bad Faith? - Dakota Minnesota and Eastern Railroad Corp. v. Acuity

In Dakota Minnesota and Eastern Railroad Corp. v. Acuity, the Supreme Court of South Dakota ruled that the requisite elements of a bad faith claim in that state, similar to the elements in Pennsylvania, were proof that (1) a insurer’s denial lacked a reasonable basis under the insurance contract and (2) the insurer knew or recklessly disregarded the lack of the reasonable basis for the denial. The court in Dakota Minnesota did allow the for the possibility that an insurer’s knowledge of a lack of a reasonable basis might be inferred, as opposed to being established directly,  but also held that an insurer would escape bad faith liability when its challenges for denials of insurance claims were “fairly debatable.” This is generally consistent with Pennsylvania law, see, e.g., Santer v. Teachers Insurance and Annuity Association. 

California: Is Violation of Underwriting Guidelines Bad Faith?

In Kevorkov v. Direct Insurance Co., a California appeals court ruled that violations by GEICO Insurance of its own underwriting guidelines could not serve as a foundation for a bad faith claim because the underwriting guidelines were not included in the insurance contract.  Presumably, the basis for the finding that not having been included in the contract, the guidelines did not constitute a duty assumed to the insured. 

Delaware:  Does Insurer Owe Fiduciary Duty To Insured?

In Brousseau v. Laccetti, a U.S. District Court in Delaware declined to find that insurer-insured relationship gave rise to a fiduciary obligation owed to the insured.  The court also ruled that an individual insurance adjuster could not be individually liable for a bad faith denial of coverage under a long term disability policy, and that an insuring agreement did not create a fiduciary obligation running from the insurer to the insured.  The court did not put any credence in the insured’s argument the fact that the insuring agreement was called an “insurance trust” created a fiduciary relationship, either.

Miscellaneous Insurer Claims Practices - Independent Medical Examinations

The 9th U.S. Circuit Court of Appeals has held that it is not bad faith for an insurer to request an independent medical examination where there was conflicting medical opinion as to the reasonableness of the need for spinal surgery for an insured, especially where an automobile insurance policy provided for an independent medical examination in the event an insured sought PIP insurance benefits. The case is Saddler v. State Farm Mutual. 

Also last year the 11th Circuit held that simply because an insurer rendered a claims decision promptly was not in and of itself conclusive proof of bad faith. See Johnson v. GEICO General Insurance Co. Consider the obverse of the situation in Pennsylvania, where at least one court has ruled that an insurer’s agreement to reconsider a claim is not bad faith, either. The case is CRS Auto Parts v. National Grange Insurance Co. These decisions, it seems, would tend to foster common sense public policies encouraging insurance companies to render prompt both  claims decisions where possible,  and at the same time keep open and flexible minds to reconsider claims decision where appropriate also.

Can an Insurer Defend Itself In Court? Litigation Conduct

Finally, a federal district court last year in Paducah, Ky., ruled that an insurer’s conduct in defending itself and opposing a UIM claim could not in itself constitute evidence of bad faith,  and simply constituted permissible  “litigation conduct.”  The district court relied on earlier precedent from the Supreme Court of Kentucky to protect the insured’s right to defend the claim.  The right to defend the cases in litigation is an important one. To tortify it as bad faith conduct would have a chilling effect on an insured’s right to defend itself.  See, e.g., Buddy v. State Farm Mutual. See also, Knotts v. Zurich Insurance. 

Conclusion

Insurers and insureds around the country struggle with the very same issues in bad faith litigation that insurers and insureds do in Pennsylvania. While it appears that the current trend is to provide insurers with a bit of breathing room and latitude within which to operate and render claims decisions, there will continue to be tension on the rope between insurers and insureds that will have to be overseen by the courts in Pennsylvania and the other states.  

Charles Haddick

"Lawyers on the Fast Track" — Nominations Open June 1

 Once a year, the Pennsylvania legal community comes together to celebrate the "next generation" of great attorneys —The Legal Intelligencer's Lawyers on the Fast Track. But before they can be honored, they have to be nominated — by YOU!

From June 1 to July 9, the nominations window will be open for you to nominate the most impressive attorney(s) you know under the age of 40. Official nomination forms will be available for download on The Legal's Web site, as well as by request via e-mail to the attention of Jaime Bochet at jbochet@alm.com.

The only parameters are the nominee must base his or her practice in Pennsylvania, and they cannot have received this honor in the past. Otherwise, anyone who has a completed nomination form submitted on their behalf may be considered.

Completed nomination forms will be evaluated by an impartial judging panel, made up of prominent members of the Pennsylvania legal community. Those nominees receiving the highest composite scores from all the panelists will be our 2010 Lawyers on the Fast Track.

The full list of honorees will be be announced in August and profiles of them will be featured in a special supplement to The Legal, published in September. They will also be honored at a celebration dinner in October.

So watch The Legal's Web site or e-mail Jaime Bochet to request a nomination form beginning June 1. Don’t let a deserving member of the profession go unrecognized — nominate them to be a Lawyer on the Fast Track.

Hear From the Media: Podcast

On April 22, 2010, I moderated a fantastic panel that addressed How and when to share your opinion with the press.

The Philadelphia Bar Association has shared the program as a podcast on their website. 

Listen in and hear from:

-Bernard Dagenais, Editor, Philadelphia Business Journal

-Hank Grezlak, Associate Publisher and Editor-in-Chief, The Legal Intelligencer

-Lisa Hostein, Executive Editor, Jewish Exponent

-Guy Petroziello, Editorial Page Editor, Bucks County Courier Times

-Irv Randolph, Managing Editor, The Philadelphia Tribune

To hear what these journalists had to say about lawyers and the media, click on this link http://www.philadelphiabar.org/page/Podcasts_Speaker_Programs?appNum=4 and then the program name.

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 agency have won numerous awards for legal communications,PR, media relations, strategic planning, corporate philanthropy, websites, marketing and leadership. She maintains a blog at www.ThePRLawyer.com, is a regular contributor to The Legal Intelligencer Blog and blogs for The Huffington Post. 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.

Common Pleas Court Held 57 Educational Programs in 2009

By Amaris Elliott-Engel
Of the Legal Staff

Fifty-seven educational programs for the 108 judges, including senior judges, who sit on the Philadelphia Common Pleas Court were held in 2009, according a report recently released about the bench's voluntary efforts to keep judges current on the law.

Unlike attorneys, judges are not mandated to have continuing legal education.

Thirty-nine of Philadelphia's Common Pleas judges developed programs for or presented programs to their colleagues in 2009, the report of the Judicial Education Committee of the Board of Judges says. The report does not track how many of the other Common Pleas judges choose to participate in the trainings.

Judge Rosalyn K. Robinson, co-chair of the committee in 2009 with Judge Lisa M. Rau, said the judicial education programs provide , among other things, an opportunity for interaction among judges, who  for the most part work in their own separate courtrooms.

There also were many other presentations by experts  from outside the court.

Lynn Marks of the Pennsylvanians for Modern Courts said the judicial education efforts of the First Judicial District give judges the opportunity to discuss with their colleagues the challenges of being on the bench, including ethical quandaries. "Discussion and peer education in a no-pressure setting is vastly preferable to judges making their own calls on the tough ethical issues that might cause them to abuse the power of the robe," Marks said.

Senators: Sales Tax on Legal Services Remains Far-Fetched

By Amaris Elliott-Engel
Of the Legal Staff

Democratic state Sens. Michael J. Stack, D-Phila., and Lawrence M. Farnese Jr., D-Phila., both said Tuesday they are opposed to Gov. Edward G. Rendell's proposal to expand the sales tax to legal services and several other areas in order to build up a reserve fund for when federal stimulus dollars run out.

The Legal reported earlier this year that Rendell's proposal to cut the sales tax rate by lifting the sales tax exemptions from a number of activities has gained little traction in the General Assembly.

Stack told a group of private sector leaders convened Tuesday to speak with the senators about the sales tax proposal that he doesn't believe there "are many Senate Democrats or Senate Republicans who are advocates of this sales tax."

Philadelphia Bar Association Chancellor Scott Cooper, one of the roundtable participants, said a sales tax is a "regressive tax" that impacts the consumers of legal services, not lawyers.

Cooper said a sales tax on legal services would  make it even more expensive to secure counsel.

Cooper also said the Pittsburgh and Philadelphia legal markets could lose their competitive edge in attorney rates by facing a sales tax on legal services, which could drive commercial work "into other competing jurisdictions which are all too ready with capable ... attorneys to snatch up that work."

The need to report sales tax to the commonwealth could also result in violating attorney-client privilege for those clients who do not want it widely known that they've sought legal counsel, Cooper said.

A sales tax on legal services would result in double taxation, Cooper also argued, because litigants pay court fees and then would have to pay sales tax on their legal services.

Kevin Shivers, representing the National Federal of Independent Business Accountants, said expanding the sales tax could result in having to pay sales tax when attorneys are present during business transactions to advise their clients.

Shivers also worried about audits and inspections by the government being turned into "money-making opportunities" if the sales tax base were expanded.

The Rule of Seven

 In case you were wondering, there is a reason why phone numbers have seven digits.  It is because studies in human learning have found that most people can only retain up to seven pieces of new information at once (and for people like me, even fewer). After pieces of new information cross the magic number seven, they start to get lost. It is just too much for most folks to retain – especially in short term memory. This has been studied in several different ways. Using verbal lists of numbers and words, research has found that people remember up to about seven items before memory starts to drop items.  The rule of seven has also been studied visually by showing folks quick glimpses of pictures with a number of dots or other shapes and then asking those folks to report how many shapes they saw. Again, folks tend to perceive the number of items accurately until about seven, and then they need to guess or estimate when larger numbers of shapes are presented.

Well, that is all very interesting, but what does that have to do with jury trials?

How much information are you asking jurors to remember?

Considering that people tend to remember only about seven pieces of new information at a time, it may be a relevant and useful exercise to evaluate how much information we are asking them to remember at trial. 

When I conduct mock trials, I engage the surrogate jurors in focus sessions at the end of the day to get a clear understanding of how they perceived the case. I ask what stood out as strong evidence for one side or another and what they really paid attention to.  Regardless of the complexity of the case, jurors reliably will focus on a few main arguments or pieces of information. Usually no more than six or … seven.

Needless to say, a mock trial is typically one day with truncated evidence and jurors will have more time to digest information during a trial, moving repeated information from short to long term memory, which has a bit more storage space.  Therefore, I am not saying by any stretch that you could or should whittle a complex commercial case down to seven pieces of evidence. If you can accomplish that, please do, but it is likely just not possible.

What I am saying, though, is that the case should be whittled down to a few overarching concepts in which evidence can be categorized. This way, even though jurors may not remember every piece of evidence (and they won’t), they will be able to keep straight in their minds the subset of key points, breaking things down into smaller pieces so they can better remember evidence within the separate key point categories.  

If you throw too much information out at trial, jurors will likely remember only some of that information, and you won’t get to choose what is remembered and what is lost. It is critical to take control of the information jurors will retain by narrowing your focus onto your strongest evidence and key messages.  The evidence in trial will obviously go beyond the magic number seven overall, but keep that number in mind as you make decisions about trial strategy and what you will emphasize in openings and closings.  

The critical point is this: Evidence is only helpful at trial when people remember it.

Melissa M. Gomez 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 close to 200 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 Gomez at melissa@mmgjury.com or call 215-292-7956.

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

Are Videogames Artistic Expression?

Recently, the Supreme Court agreed to hear the State of California’s appeal in Schwarzenegger v. Entertainment Merchants Association, a case which both the district court and the Ninth Circuit invalidated on First Amendment grounds  — a California law bars the sale or rental of violent videogames to minors. When it hears the case, the Supreme Court will have to address an existential question about video games: Are they games in video form, or are they something more than that, closer in kind to a movie, a television show, or even a digital short?  (The question evokes images, at least for me, of Mike Myers’ Saturday Night Live character Linda Richman saying to the audience, “Video games are neither videos nor games. Discuss.”)  Mere games, of course, seem unlikely to be viewed as an “expression” entitled to protection under the First Amendment, while something akin to a movie or other video story most likely would be entitled to such protection. 

For anyone who has not played a video game in the last 10 years, the answer to that question might surprise you. Today’s games are not just progressively more difficult challenges with a graphical interface, à la Pac Man or Super Mario Brothers. Instead, for many of today’s games, the emphasis is on creating an alternate universe, and there is either a story arc or a world to explore, if not both. Sometimes, the story is part of a broader multimedia platform. For example, years ago I stayed up nights on end trying to finish a game set in the same universe as the Matrix movies. As I completed various levels, I was rewarded with live-action footage featuring many of the characters in the movies, often filling in gaps that were left unexplained in the movies themselves. Other times, the game offers a universe of its own, and the player either advances the story, or simply resides in and interacts with the alternate universe that the programmer has created. Either way, these games seem to bear many of the hallmarks of artistic expression. 

Ultimately, the answer to this question might not be one that California or any other state wants to hear – each game is probably sui generis. The Matrix game to which I devoted so many evenings bears many of the hallmarks of creative expression – a narrative in an alternate universe in which the player advances to conclusion. Other games, such as the ubiquitous Madden football franchise, do not tell a story or create a parallel universe. They simply offer the user a chance to control computer-created athletes in competition. The differences between these two types of game are significant, and they emphasize the importance of considering each video game on its own merit to determine whether it deserves protection under the First Amendment. 

The Supreme Court’s answer to what protection the First Amendment offers to video games will be important to the video game industry, but not only to that industry. Indeed, the way that the Court approaches the question, and the factors it uses to determine whether video games are just that or are a protected form of expression, could significantly impact the way other new, or evolving, media obtain protection under the First Amendment. From social networking to smart phone apps to technologies that none of us is using today, the outlets available for possible expression are expanding at a dramatic rate, and the Court’s decision next term could dramatically shape how those media determine what protections the Constitution offers them. 

Joshua D. Wolson is a partner in the Litigation Department at Dilworth Paxson. He can be reached at (215) 575-7295 or jwolson@dilworthlaw.com. This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.

Castille Asks Rendell Not to Appoint New Judges

By Shannon P. Duffy
U.S. Courthouse Correspondent

Citing a budget crunch that has left the judiciary in a “precarious financial position,” Pennsylvania Chief Justice Ronald D. Castille last week urged Gov. Edward G. Rendell to immediately cease making any nominations for interim judges.

Rendell has reportedly agreed to a freeze on nominations subject to change only if a county court is developing a backlog due to a lack of judges.

"The governor and the chief justice have agreed that he will make no new appointments to vacancies unless the local county court can convince the chief justice that it is warranted by the backlog of cases in that county," Rendell spokesman Gary Tuma told the Lancaster New Era and Intelligencer Journal newspapers.

Castille, in a three-page letter to Rendell, said that judges are the highest paid employees in the judiciary, and that delaying the filling of current vacancies is “one of the few areas where we can achieve any significant savings.”

Counties also benefit from such delays, Castille wrote, because the support staff for any new judge are paid from the county's coffers.