The Legal Intelligencer Blog

Our Blog Is Relocating

The Legal Intelligencer blog is now being hosted on The Legal’s homepage at www.thelegalintelligencer.com.

Beginning Jan. 20, you will find our blog posts as part of the paper’s main website. Access to your favorite blog content will continue as part of ALM’s digital membership. When you visit, you just need to sign in to your existing account, or register for a new membership. It’s as simple as that. Visitors to The Legal Intelligencer blog will automatically be forwarded to the new site, but you should make sure to update your bookmarks.

Plaintiffs Respond to State's Request for Act 13 Reargument

By Zack Needles
Of the Legal Staff

About two weeks after the Pennsylvania Public Utility Commission and Department of Environmental Protection asked the state Supreme Court to reconsider its ruling striking down as unconstitutional key provisions of the state’s Oil and Gas Act amendments, the plaintiffs have filed an answer arguing that the agencies presented “no compelling reason for reargument.”

The high court’s ruling, issued Dec. 19, 2013, overturned Section 3304 of 58 Pa. C.S., known as Act 13 of 2012, and affirmed the decision of a deeply split en banc Commonwealth Court panel. The lower court found last July that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

In a plurality opinion, Chief Justice Ronald D. Castille said the state "fails to respond in any meaningful way to the citizens' claims that Act 13 falls far short of providing adequate protection to existing environmental and habitability features of neighborhoods in which they have established homes, schools, businesses that produce or sell food and provide health care, and other ventures, which ensure a quality of human life."

While the state argued in its application for reconsideration that the ruling “runs roughshod” over the principle that the Pennsylvania Supreme Court does not sit as a trier of fact, the plaintiffs said in their answer that the court’s ruling was based on a “purely legal determination on Act 13’s constitutionality.”

“Neither the Commonwealth Court nor this court required factual findings to conclude that statutory language allowing heavy industrial activity next to homes, schools and sensitive natural resources without consideration of local conditions and preventing municipalities from ameliorating adverse impacts violated the people’s inherent rights as guaranteed under the Pennsylvania Constitution,” the plaintiffs argued.

Marketing Lessons from Riviera Maya

By Gina F. Rubel
Special to the Legal

I just returned from the Yucatán Peninsula after a week of traveling with family. While there and since I returned, I have been pondering a number of things that struck me as brilliant marketing, missed opportunities and misleading marketing. What it comes down to is messaging and meeting expectations. When combined correctly, both are ingredients of excellent marketing. On the other hand, when the reality is not in line with the message, there will be disappointed clients and customers.

Riviera Maya: Brilliant Marketing

Did you know that the phrase “Riviera Maya” was coined as a marketing ploy to get tourists to the area south of Cancun in the state of Quintana Roo, Mexico? Just 10 years ago, this area was considered a sleepy, quiet destination with an important Mayan influence. Now, it is a bustling mecca of Disney-like, all-inclusive resorts, busy public beaches and downtown shopping areas, with international restaurants, Starbucks every other street and nightlife that compares to Duval Street in Key West. While the word “riviera” certainly connotes luxury, its definition is “a coastal region frequented as a resort area and usually marked by a mild climate,” with an origin in the region of southeastern France and northwestern Italy. Whoever coined the phrase Riviera Maya was brilliant–it is a great way to market this beautiful destination.

How do you define your business?

Aldea Corazon: Missed Opportunity

Aldea Corazon is a restaurant in Playa del Carmen, Mexico, that offers a very distinctive experience. You enter from the busy Fifth Avenue, as if you are entering a trendy sidewalk bar in South Beach, and you go into a jungle oasis with quiet seating on various levels next to a cenote (natural crater in the limestone). This outdoor dining under the trees with torches and candles is in a unique location but is not widely marketed as such. There are no signs on the busy Fifth Avenue indicating that there is a jungle-like sanctuary in the rear of the establishment. Had we not had friends who are expats living in Playa, we would not have known about it.

What are you not telling your target audience?

“Fifteen Feet From the Beach”: Misleading Marketing

We rented a house in Playa del Carmen that was marketed as being “15 feet from the beach.” The photo on the website showed a pathway from the house to sand and sea. In reality, the house was more like 100 feet from the beach, but that’s not the main issue. The pathway to the beach was on the property of the beach-front house across the street and had a locked beach-access gate. The truth is, what we expected was a house “only 15 feet to the white soft sand beach.” Instead, we had to walk several hundred yards along the road to the public beach access.

That same house was purported to have WiFi. The simple fact is that the WiFi router was in another house several houses away and never worked. While it may sound like nitpicking, there were seven people in the house, many of whom needed to access work and personal email but could not. At the end of the day, we didn’t get what we paid for.

Is there anything you’re telling your audience that may be misleading or that you can’t back up?

Here’s the bottom line: When marketing your law firm, be sure to use accurate language that defines your firm, shares that which is unique and inviting (a.k.a. unique selling proposition) and creates expectations that can and will be met.

Gina F. Rubel is the owner of Furia Rubel Communications Inc., an integrated marketing and public relations agency with a niche in legal marketing. She and her agency have won national awards for law firm marketing, PR, website and graphic design, social media, strategic planning, corporate philanthropy and leadership. She maintains a blog at www.ThePRLawyer.com, is a contributor to The Legal Intelligencer Blog, AVVO Lawyernomics and 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.

Asking the Right Questions During Voir Dire

By Jocelyn Cinquino
Special to the Legal

The potential value of information gathered throughout the process of voir dire is indisputable. Getting a chance to learn about the jurors’ lives, their families, their past experiences and what they think about major case issues is without question one of the most important things you can do. There comes a point in time, however, when too much of a good thing becomes a problem. When your well-intentioned juror questionnaire has spiraled into more than 100 items or when your proposed voir dire is 10 pages long, you know you have crossed the line from that information being helpful to it becoming a hindrance. The ultimate value of what you learn through voir dire is infinitely tied to how you end up using it. If your information is only as good as what you get out of it, making your voir dire and questionnaires manageable from the start helps you in the end.

As your thoughts for areas to pursue in voir dire start to take shape, you should allow yourself to brainstorm and create a wish list of questions without limits. Getting all of those ideas and thoughts down on paper can help with the necessary next step, which is stepping back. Casting a critical eye on the unedited list lets you see where your stream of consciousness is leading you. Are you picking up on certain categories of questions, ones that you may be repeating or asking in alternative ways or those for which you struggle to find the best language? This tells you a lot about what is really important to ask about and what may be nice to know but isn’t going to get you anywhere. For example, you may like to know how they get their news, but in a case where media isn’t an issue, what are you going to do with that information at the end of the day? Any insight their answer could offer on possible political or lifestyle orientation would come out in other ways if it were an important enough part of the jurors’ lives.

Separating out the questions you can and cannot live without gives you direction and brings your focus to the issues that ultimately matter the most. As you go through this process, it’s typical to see that the questions that make the cut are those that are specific to your case and not so much those stock questions we grow attached to and ask almost as a reflex. If you are covering the three most important areas, namely, (1) how a juror has lived life, (2) how they spend their time and (3) what they think about major issues in your case, you can make voir dire manageable and avoid the pitfalls of focusing on things like demographics in favor of more helpful attitudinal and experiential information.

You do yourself a favor on the logistical end of things, too, when you keep your voir dire and questionnaires lean and focused. For example, if you know 200 jurors will be completing a questionnaire before voir dire and you have just a few days to review and rank them for potential strikes and follow-up questions, make sure you have a plan in place for what you are going to do with all that information when it starts rolling in. Strategize beforehand what questions you will be on high alert to review, who on your team is going to do what when and how you will actually use the information once you have it all reviewed. Sometimes even basic things like how long it takes to scan all those pages, how much time it takes to ask a long list of voir dire questions in court or how to physically view your juror questionnaire ranking file at counsel table become issues that need attention.

Considering the perspective of the judge and jurors on this issue also makes clear how important it is to make sure our eyes don’t become too big for our stomachs when it comes to voir dire information. Being sensitive to a judge’s generally streamlined approach to voir dire by proposing a thoughtful, meaningful list of edited questions increases chances they accept your list. Even if the judge doesn’t allow everything you would like, he or she will get a clearer sense of your position and perspective on the case from the questions you are proposing be addressed. And jurors, notoriously unforgiving of any perceived waste of their time or repetition, will appreciate a tight, concise voir dire and they will remember you for it.

Being realistic and strategic about the questions you ask in the process of jury selection, whether it be in open court or through a questionnaire, makes the cognitive task of asking follow-up questions and exercising strikes easier to handle and ultimately more instructive. Putting quality of over quantity keeps you focused on the handful of key questions that actually tell you more about the juror than 10 other questions combined ever could.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and a M.A. in forensic psychology from John Jay College of Criminal Justice. For over 15 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy. Contact her at [email protected] or 917-733-0770.

Seeking Lifetime Achievement Award Nominations

Last spring, The Legal honored for the first time some of the most important figures in the history of the legal profession in Pennsylvania with Lifetime Achievement Awards. We will be honoring another group of legal luminaries this year and would like your help in the selection process. Who do you think is deserving of being honored with a Lifetime Achievement Award? We’re looking for recommendations of attorneys from all corners of the legal profession and the state, not just firm founders, including jurists, officeholders and anyone else who has left an imprint on the legal history of the state over the years.

If you have someone in mind, please send an email to Ben Seal at [email protected] briefly explaining why you think he or she should be given a Lifetime Achievement Award. No more than one paragraph explaining the person’s outstanding career achievements is necessary. We’ll be providing profiles of each honoree in an upcoming supplement, and all will be invited to a celebratory event later this year. All nominees should be living.

All suggestions are due by Jan. 17.

Law Firm’s App Tackles Data Breach Issues

By Gina Passarella
Of the Legal Staff

In an era when data breaches and their inherent legal ramifications are a growing concern for corporate America, law firms have been organizing practice groups and task forces to best advice clients on the issue.

Now one firm is using technology to help clients navigate this tech-laden problem area.

Scott L. Vernick, a partner with Fox Rothschild and chairman of the firm’s privacy and data security practice group, has developed Data Breach 411, a free iPhone app that companies affected by a breach can use to navigate the various applicable state rules and regulations.

The app provides up-to-date, state-specific information regarding data breach notifications, HIPAA/HITECH and Children’s Online Privacy Protection Act laws, as well as additional resources aimed at helping clients dealing with data theft, the firm said.

“Data breaches can severely impact a company's reputation and have debilitating consequences to businesses big and small,” Vernick said in a statement.

“Our app is a ‘one-stop shop’ for in-house counsel and privacy officers to instantly access the relevant state-specific details on what they need to do, who they need to notify, when and how,” Vernick added.

Fox Rothschild said there are currently 46 states that have laws in place addressing how organizations should prepare for and respond to the loss or theft of data.

Along with the various statutes that can be found on the app, it also includes links to credit agencies, credit-monitoring services and the FTC website, the firm said.

This isn’t the first app Fox Rothschild has developed. In June, the firm launched an app created by New Jersey-based attorneys that focuses on New Jersey family law.

Buchanan Ingersoll Names New General Counsel

By Gina Passarella
Of the Legal Staff

Buchanan Ingersoll & Rooney has named a new general counsel.

The firm announced today that labor and employment co-chairman and shareholder Gregory A. Miller will serve as its newest general counsel.

Miller is taking over for John Leathers, who served as the firm’s general counsel for almost 10 years. Sue C. Friedberg and Darice McNelis will continue to serve as associate general counsel to the firm.

All four of the attorneys are based in Buchanan Ingersoll’s Pittsburgh headquarters.

“Much of the experience I’ve gained during my career will be useful in advancing the firm’s goals as inside counsel,” Miller said in a statement.

Jack Barbour, the firm’s CEO, added, “Given Greg’s excellent legal skills and analytical abilities, combined with his historical knowledge of the firm, he is an ideal fit for this role.”

Miller's practice has encompassed a range of employer counseling and employment litigation issues. In addition to co-chairing the labor and employment section, he has previously served in a number of leadership positions with the firm and on its board.

State Asks Justices to Reconsider Act 13 Ruling

By Zack Needles
Of the Legal Staff

Arguing that the ruling “runs roughshod” over the principle that the Pennsylvania Supreme Court does not sit as a trier of fact, the state Public Utility Commission and Department of Environmental Protection have petitioned the justices for reconsideration of their decision to strike down as unconstitutional amendments to the state's Oil and Gas Act requiring municipalities to adopt uniform zoning ordinances that would allow drilling in all zoning districts.

“As this court has emphasized, fact-finding is ‘a task for a trial court,’ and an ‘area of the judicial process’ that this court ‘would never invade,’” the agencies said in their petition, quoting language from the 1969 Supreme Court case Reed v. Universal C.I.T. Credit. “Because the court for the first time has ‘invade[d] that area of the judicial process’ in this case, reconsideration is warranted.”

The high court’s ruling, issued Dec. 19, 2013, overturned Section 3304 of 58 Pa. C.S., known as Act 13 of 2012, and affirmed the decision of a deeply split en banc Commonwealth Court panel. The lower court found last July that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

While four out of six justices in Robinson Township v. Commonwealth found Section 3304 to be unconstitutional, only one of them, Justice Max Baer, based his finding on due process grounds.

The other three justices who agreed to toss out the zoning mandate—Chief Justice Ronald D. Castille and Justices Debra Todd and Seamus P. McCaffery—ruled that it violated the Environmental Rights Amendment to the state constitution.

Justice Correale F. Stevens did not participate in the consideration or decision of the case.

Article I, Section 27 of the state constitution states that the legislature has an obligation to restrain actions of private parties that are likely to harm the environment and degrade public natural resources.

In a plurality opinion, Castille said the state "fails to respond in any meaningful way to the citizens' claims that Act 13 falls far short of providing adequate protection to existing environmental and habitability features of neighborhoods in which they have established homes, schools, businesses that produce or sell food and provide health care, and other ventures, which ensure a quality of human life."

Baer, however, said in a concurring opinion that he believed the plaintiffs' argument that Act 13's zoning requirements violated their substantive due process rights to be "better developed and a narrower avenue to resolve this appeal."

Justice Thomas G. Saylor issued a dissenting opinion, which Justice J. Michael Eakin joined, saying he would uphold the Act 13 amendments in recognition of "the authority of the General Assembly to make basic, rational policy choices—through the democratic process—that balance the various and potentially conflicting purposes of Act 13."

Eakin filed his own dissenting opinion, echoing Saylor's point.

The agencies mainly focused on Castille’s plurality opinion in their petition, arguing Castille’s findings that natural gas drilling in Pennsylvania “’will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse’” constituted “sweeping factual conclusions” improperly made without a factual hearing at the lower court level.

“Because [the] Commonwealth Court neither conducted a factual hearing nor issued factual findings, however, none of these broad factual statements finds support in the proceedings below,” the agencies said in their petition. “This court should follow its own established precedent and remand to Commonwealth Court for development of facts, application of this court’s newly pronounced standards to the facts found by the Commonwealth Court, and a final determination whether Act 13 violates Section 27 based on a full record and formal factual findings.”

 

Woodcock Washburn, Baker & Hostetler Complete Merger

By Gina Passarella
Of the Legal Staff

The new year brought a new firm to Pennsylvania with the merger of Philadelphia-based intellectual property boutique Woodcock Washburn into Am Law 100 firm Baker & Hostetler. The two firms first confirmed to The Legal in late November reports of their intent to combine. The firms’ respective partnerships voted on the merger in early December and it went into effect yesterday.

“We are pleased at how seamlessly our two firms came together to complete our combination, and excited by the substantial range of scientific and technology knowledge and experience that Woodcock Washburn has collectively brought into the firm,” Baker & Hostetler Chairman Steven Kestner said in a statement. “The combination will also help us better serve clients in several key markets nationally.”

All but two of the 68 lawyers of Woodcock Washburn, with offices in Philadelphia, Seattle and Atlanta, merged into Baker & Hostetler, creating a combined firm of about 900 lawyers with 14 offices across the country. Of the two attorneys who didn’t join, one retired and one was of counsel at Woodcock Washburn’s Seattle office.

Woodcock Washburn policy committee member Joseph Lucci became partner in charge of the Baker & Hostetler Philadelphia office and his partner Steven Rocci took a seat on the new firm’s policy committee.