The Legal Intelligencer Blog

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.)

The top story in today’s Legal is an analysis of the suspension of state Supreme Court Justice Joan Orie Melvin. As reporters Zack Needles and Ben Present write, observers say that the suspension creates a less effective bench.

Also above the fold on Page 1, reporter Gina Passarella writes that Pennsylvania firms are raising rates more than any other region in the country, but aren’t raising revenue, according to a flash report by Citi Private Bank Law Firm Group.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that a federal judge has ruled that a waiver of underinsured motorist benefits carries forward to vehicles added to an existing policy.

In more Regional News on Page 3, Gina Passarella writes that class action firm Cohen Milstein Sellers & Toll has reopened in Philadelphia with a qui tam group and the hire of three Berger & Montague attorneys.

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 Litigation column on Page 5, Charles F. Forer writes about illusory arbitration agreements.

In a Bankruptcy Update on Page 7, Rudolph J. Di Massa Jr. and Aaron J. Margolis writes that the justices are split over cramdown plans precluding credit bidding.

Today’s lead story in PLW is a look at state Supreme Court Justice Thomas G. Saylor’s disposition for dissent. As Ben Present writes, Saylor is the court’s most frequent dissenter by a wide margin.

Below the fold on Page 1, Zack Needles writes that the high court will mull the scope of the state Board of Claims’ jurisdiction.

On Page 3, Zack Needles writes that the Commonwealth Court has ruled that the operation of a compressor station falls within the definition of “gas production.”

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers maintaining copies of clients’ wills; Daniel E. Cummins’ Litigation column, in which he writes about five common mistakes to avoid during deposition; and David Mandelbaum’s Environmental Law column, in which he wonders where environmental justice currently stands.

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.

Phila. Bar Association Launches Legal Assistance for Military Veterans

By Amaris Elliott-Engel
Of the Legal Staff

The Philadelphia Bar Association is expanding its legal assistance for active-duty military personnel and their families to all veterans who cannot afford or do not have access to the legal services they need.

The pro bono legal work will help veterans with “service-related compensation, discharge status and health care issues,” according to a bar association announcement. The Military Assistance Program also will assist a Philadelphia Municipal Court problem-solving court for veterans facing charges in the criminal justice system. Defendants facing criminal charges often also have civil legal problems.

The initiative accomplishes a key goal Philadelphia Bar Association Chancellor John E. Savoth set for his year leading the voluntary bar association.

MAP also is in need of volunteers, and Charlie Klitsch, director of public and legal services for the bar association, can be reached by prospective volunteers at 215-238-6326, according to the association’s announcement.

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 Monday 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 the Pennsylvania Supreme Court justices suspending Justice Joan Orie Melvin on Friday after she was charged in Allegheny County with nine criminal counts alleging she used legislative and judicial staff to perform campaign work. Be sure to read through the excellent reporting on display in this article.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that President Obama has made two nominations for the open seats on the federal bench in the Middle District of Pennsylvania. There is no certainty, however, that Matthew Brann, a Republican, and Malachy Mannion, a Democrat, will be confirmed.

In more Regional News on Page 3, reporter Zack Needles writes that a Bucks County jury has sided with the defendant landlord in a case in which a tenant became ill because of a mold problem in her apartment.

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 Real Estate column on Page 5, James M. Lammendola and Harper J. Dimmerman write that open-ended construction mortgages are in danger of losing lien priority to mechanic lien claimants.

The Law Technology News page covers preservation and proportionality in legal holds.

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.

Hearing From the Deaf

By James W. Cushing
Special to the Legal

I recently discussed in this space how technology has aided attorneys in their representation of the deaf. Since that time, I have received some feedback that I think is worthwhile to share.

When it comes to language, while the deaf and hearing use the same written form of English, when “spoken,” American Sign Language employs very different forms of syntax, expression, word order and grammatical structure as compared to spoken English. As a result, sometimes, especially with deaf people older than the so-called Generation X, the norms of spoken American Sign Language become intermingled with a deaf person’s written English, often to the extent that it causes a language barrier. Therefore, practitioners must be sensitive when communicating with a deaf person and realize that sometimes written communication may not be as effective as it would be with a hearing person.

In addition to the above, a common misconception among the hearing is that the deaf can simply lip read in order to effectively communicate. Unfortunately, lip reading is a very inexact science, with many words unsuccessfully read during a typical conversation. Even if the general gist of an attorney’s point is communicated, this is insufficient, as legal advice is generally fairly complicated and requires, as much as practicable, the full understanding of the client and not simply getting the gist across. Besides, not all deaf people have the skill of lip reading; presuming that they do is simply a hearing person’s stereotype of the deaf.

The Americans with Disabilities Act prohibits an attorney from denying services because of an “absence of auxiliary aids and services.” These services include a sign language interpreter; however, a firm is not required to use an interpreter if it would result in an “undue burden.” While the cost for the interpreter is to be absorbed by the attorney, an attorney may bill for the extra time it may take to effectively communicate with a deaf client. In order to offset some of these costs, the Pennsylvania and Philadelphia bar associations established the Interpreter Access Fund. In addition, it may be possible to secure a tax credit for an attorney’s special expenditures to serve a deaf person pursuant to the Disability Access Credit.

Finally, a variety of organizations exist to help the deaf navigate the legal system and achieve justice. These organizations include the Disabilities Rights Network, the Pennsylvania School for the Deaf, the Legal Clinic for the Disabled, the National Association for the Deaf, and deaflegal.org. It is worthwhile for an attorney to investigate each of these if one intends to represent the deaf on a regular basis.

James W. Cushing is an associate at the Law Office of Faye Riva Cohen and research attorney for Legal Research Inc. He is licensed to practice law in both Pennsylvania and New Jersey.

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 Buchanan Ingersoll & Rooney acquiring seven-lawyer litigation boutique Manion McDonough & Lucas in Pittsburgh. As reporter Gina Passarella writes, Buchanan Ingersoll said the group’s addition brings the firm’s litigation practice to about 115 attorneys, or about one quarter of its total headcount.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that the co-defendants in the Catholic Archdiocese sex-abuse trial have been acquitted of one conspiracy charge.

Below the fold on Page 1, reporter Zack Needles writes that Eckert Seamans Cherin & Mellott has announced Heidi B. Hamman Shakely as the new chair of its board of directors, the first time in the firm’s 54-year history that a woman has led the board.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that a federal judge has overruled objections to a plan to repay victims of a Ponzi scheme.

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 Litigation column on Page 5, Judy Weintraub and Harrie Samaras write about how to approach a preliminary meeting.

In a Commentary on Page 7, Douglas S. Lavine writes about the perils of overidentifying with your client’s emotions.

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.

Two Named to Fill Vacancies on U.S. Middle District Court

By Saranac Hale Spencer
Of the Legal Staff

President Obama has nominated Matthew Brann and Malachy Mannion for the two vacant seats on the bench in the Middle District of Pennsylvania.

Brann, a partner at Brann Williams Caldwell & Sheetz in Bradford County, is a former chairman of the county’s Republican committee and is a graduate of Penn State’s Dickinson School of Law.

Mannion has been a magistrate judge in the Middle District since 2001 and, before that, was an assistant U.S. attorney there. For four years, he was in private practice as a principal at Hourigan, Kluger, Spohrer & Quinn in Scranton.

"Malachy Mannion has served the public as a U.S. attorney and as a federal magistrate judge, and I will push for a speedy confirmation process in the Senate. I have known Mal for years and he is an excellent lawyer whose integrity is beyond reproach," Senator Robert P. Casey Jr., D-Pa., said in a press release. "Matthew Brann, along with an impressive career in private practice, has demonstrated a commitment to the community that will make him an outstanding judge.”

"On a bipartisan basis, I have been working closely with Sen. Casey on judicial nominations for our state to help confirm qualified, experienced individuals with unquestioned honesty and integrity. I am confident that these two nominees will live up to these standards and hope that the Senate confirms them in a timely manner," Senator Pat Toomey, R-Pa., said in a press release.

The seats became open upon A. Richard Caputo’s retirement in 2009, and Thomas Vanaskie’s elevation to the U.S. Court of Appeals for the Third Circuit in 2010.

The reinforcements, if confirmed, would restore the Middle District bench to full strength.

“We try not to dwell on it,” Yvette Kane, chief judge in the Middle District, said earlier this week of the four active judges who have been saddled with heavy caseloads in absence of a full complement on the bench.

The national average number of days from the announcement of a vacancy to the nomination to fill it is 399, according to Russell Wheeler, of the Brookings Institute. Wheeler has published several studies on the judicial nomination process and its politics.

Men Would Breast Feed to Get a Job … And Other Notes From Our Women in the Profession Luncheon

By Gina Passarella
Of the Legal Staff

The Legal Intelligencer hosted its Women in the Profession luncheon today and aside from honoring 21 amazing women lawyers from across the state, we had a great speaker in Allstate GC Michele Coleman Mayes, who recently co-authored Courageous Counsel: Conversations With Women General Counsel in the Fortune 500.

In recounting a number of stories to show how women are often either held back in the workplace or, conversely, hold themselves back in the workplace, Mayes recounted a humorous example she heard from another woman in the profession.

I’m paraphrasing liberally, but the hypothetical went something like this:

There is a great job opportunity out there that includes breast feeding as one of its job descriptions. If a woman who had three kids and breast fed them all got the job offer, she would hem and haw about how she wasn’t very good at breast feeding and her kids were often hungry afterward. She would worry she couldn’t do the job.

If a man got the call, Mayes recounted, he would quickly say that he watched his wife breast feed and it didn’t look that hard and he was sure he could learn, too.

Through her humor, Mayes raised some interesting points about not just what the legal profession as a whole does to hold women back, but what women might do to themselves. I’d be curious to hear others’ thoughts on what the greater obstacle is for women in the workplace.

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 the state arguing that a $150 million suit regarding the antipsychotic drug Risperdal should have gone to a jury. As reporter Gina Passarella writes, some Commonwealth Court judges seemed skeptical during oral arguments whether Janssen Pharmaceutica defrauded the state government of the money, or if it was just a lack of research by public officials that led the Medicaid program to pay $3.50 more per pill for the drug than its competitors.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that Pennsylvania bishops of the Catholic church formed an ad hoc committee to shield secret archives, according to the last prosecution witness.

Below the fold on Page 1, reporter Ben Present writes that the state Supreme Court has agreed to hear an appeal over whether “unauthenticated” text messages may be admitted as evidence during trial.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that the U.S. Court of Appeals for the Third Circuit has held that a woman who was prescribed medications for off-label uses doesn’t have standing to sue the drug company that marketed them.

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.

On the Paralegals Page on Page 5, Helen M. Howlett writes that paralegals need not be afraid of e-discovery.

In this week’s Young Lawyer column on Page 7, Michael P. Maslanka writes about five lessons for young attorneys from mentors who cared.

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.

Trustee Comments on Reinstatement of His Malpractice Suit Against K&L Gates

By Gina Passarella
Of the Legal Staff

Mark Kirschner, the trustee of bankrupt bottled-water producer Le-Nature’s, called a Superior Court’s decision to reinstate his $500 million malpractice suit against K&L Gates a “major victory for the Le Natures Liquidating Trust.”

Kirschner sued the law firm and accounting firm Pascarella & Wiker for not detecting fraudulent activities within Le-Nature’s when the two firms were hired to do an internal investigation in 2003. He has argued that the firms’ finding no evidence of fraud allowed certain people within the company to continue their illegal activity until the company went bankrupt in 2006, costing another $500 million in damages.

Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. had previously dismissed all of the claims against the two firms, finding they were hired by the special committee of the board created to investigate reports of fraud. The trial judge said K&L Gates had no duty to Le-Nature’s itself.

But the Superior Court disagreed, finding the work done on behalf of the special committee was essentially for the board and therefore the company. The court said there were actual losses suffered by Le-Nature’s due to K&L Gates’ actions as described by Kirschner in his complaint. Kirschner said the Superior Court’s decision also cited with approval a decision by the U.S. Court of Appeals for the Third Circuit in Official Committee of Unsecured Creditors of Allegheny Health Education & Research Foundation v. PriceWaterhouse Coopers regarding the application of the in pari delicto doctrine.

Kirschner said that aspect of the opinion is of “great significance” because it is “the first major appellate decision in Pennsylvania” to adopt the idea that, in Pennsylvania, “a professional firm that acts other than in good faith, as alleged in the complaint against K&L Gates, cannot avoid potential liability under the doctrine of in pari delicto.

Check out the full article about the Superior Court’s decision here.

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.

Contract Drafting in the Age of Computers

By Elizabeth J. Goldstein
Special to the Legal

 Imagine your physician practicing medicine identically to the doctors in Charles Dickens’ time. Ridiculous, right? However, we lawyers are still drafting contracts virtually identically to the solicitors who practiced in the days of Bleak House. I recently had the opportunity to interview Kingsley Martin, an attorney who is the CEO of Kiiac (pronounced kayak), a company that is harnessing the power of computing to create contract checklists for entire agreements and individual clauses.

Kiiac’s software can review a large sample set of agreements and identify the core, standard language and distinguish deal-specific terms. During our interview, Martin used a merger agreement as an example. Kiiac’s software has determined that there about 350 common clauses found in merger agreements. It is impossible for lawyers to keep all of these in their heads. Inevitably, lawyers will leave out key terms or put in duplicative or overlapping terms. Kiiac’s software application can review a draft agreement and compare its terms against the 350 standard merger provisions. It will indicate to the lawyer both possible additional terms and duplicative terms. The text of the reviewed agreement is color-coded. Black text means the text is commonly found in merger agreements, while red text delineates text that diverges from the standard agreement.

Martin has found that commercial clauses across agreements are strikingly similar, frequently using the same terms of art or common phrases. Additional analysis shows they share common sub-elements. Clauses, thus, can be viewed like agreements as checklists of elements, detailing mandatory and optional clauses. For example, the Nondisclosure Obligation in a confidentiality agreement can be viewed as containing four elements: (1) confidentiality, (2) non-use, (3) nondisclosure, and (4) protection of information.

Some contract terms with the most common text and frequent variations can be found for free at Kiiac’s website, www.contractstandards.com. These clauses create a checklist of elements detailing required and optional clause terms. Thus, Kiiac offers checklists at the macro and micro levels of contract drafting. It also automates template building, which should add to drafting efficiency.

Kiiac is working on analyzing all commercial agreements. Currently, it provides an interesting table on its website comparing and contrasting provisions among agreements. When agreements are compared this way, historical drafting idiosyncrasies are unearthed that can be corrected. For instance, almost all finance agreements have a representation and warranty concerning indebtedness. However, many acquisition agreements do not. This is a glaring omission, since the acquiring company should be as concerned with outstanding loans as a company providing financing.

A few lawyers have been critical of Kiiac’s contract analysis application because it indicates what language is prevalent but does not guarantee that the language is clear. However, the software performs an essential task, albeit one that could not be performed until now. With Kiiac, attorneys have the full anatomy of commercial contracts at their disposal. I predict that one day it will be malpractice not to use this type of software to draft and review contracts. This software, however, does not end the need for lawyers. Lawyers still must determine which clauses should be used in which contract and ultimately how these provisions should be drafted and interpreted. Nevertheless, it is inarguable that the computer is a powerful computational engine that can aid lawyers in drafting smarter agreements but does not allow lawyers to put themselves on autopilot. Now, excuse me while I fire up David Copperfield on my Kindle.

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.