Friday, July 31, 2009

Conahan and Ciavarella Guilty Pleas Rejected by Court

According to a press release issued today by Hank Grezlak and Leo Strupczewski of the Legal Intelligencer, on July 30, 2009, Judge Edwin Kosik, the Pennsylvania Middle District Federal Court Judge overseeing the criminal proceedings involving former Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella, Jr., issued an Order rejecting the guilty pleas that were entered into by the Judges back in February, 2009. Those guilty pleas called for the Judges to serve 87 months in prison.

In his Order, Judge Kosik stated that he could not accept the plea agreements in light of the judges’ post-guilty plea conduct and statements which seemed to contradict their admissions of guilt to certain crimes charged.

In his Order, Judge Kosik noted that a hearing would be scheduled, during which the U.S. Attorney or Conahan or Ciavarella will have the opportunity to either withdraw their guilty pleas, or accept a potentially stiffer sentence from Kosik. In addition, Kosik said the parties had ten days to waive the hearing in writing.

Judge Kosik's Order can be found online at

For more articles on the Luzerne County Judicial Scandal you can visit the archives in the websites of some of the local newspapers. Check out and click on their link for "County Judges." Another site is, where you can click on their link for "Corruption Probe."

Thursday, July 30, 2009

Over 100 Email Subscribers - THANKS VERY MUCH

I have just gone over the 100 number in terms of subscribers to this blog. I thank all of you for signing up and hope you are finding the blog useful and/or interesting. I will try to keep the updates coming.

If any of you are willing to do so and have the time, I would appreciate it if you could please click on the box to the right entitled "Blogged" and take a few moments to "rate this blog." This may help me to get a wider exposure in the long run. I welcome any suggestions you may have to improve the blog or in terms of different topics you might like to see addressed.

I would also appreciate it very much if you could spread the word about the blog if you know of others who may benefit from it.

Thanks again,

Dan Cummins

Wednesday, July 29, 2009

Another Recent Post-Koken Decision in Favor of Consolidation

A recent April 9, 2009 Order in a Lehigh County post-Koken case was brought to my attention by Attorney Evan Kline, a former classmate of mine at the Dickinson School of Law and a current member of the York, Pennsylvania law firm of Katherman, Briggs & Greenberg . I thank Evan for this tip.

As a reminder, "post-Koken" cases are those cases arising after the Pennsylvania Supreme Court issued an opinion in a case commonly referred to the "Koken" case (the name of one of the parties)--in that case, the PA Supreme Court ruled that carriers could do away with the arbitration clause and allow for UM/UIM cases to be litigated by way of a jury trial.

Ever since, the carriers have issued new policies without an arbitration clause and many auto accident cases have been filed with the cause of action against the defendant driver and the UIM claim being pursued in one lawsuit. Some defendants are objecting to being lumped in a case with an insurance company defendant. So far, the trial courts are keeping the cases together.

In her Order issued in the case of Serulneck v. Kilian and Allstate Fire and Cas. Ins. Co., 2008-C-2859 (Lehigh Co. April 9, 2009), Judge Carol K McGinley follows the trend of allowing post-Koken third party and UIM cases to proceed under the same caption. The Judge denied the tortfeasor defendant's Motion for Severance and, in her footnote to the Order, the Judge wrote:

"The entire cause of action, whether sounding in tort or contract, arises from the same set of facts. Defendant Allstate will be prejudiced if excluded in any litigation which fixes its liability."

Anyone wishing to receive a copy of this Order may contact me and I will be happy to email it to you. I am also in possession of a number of other post-Koken decisions from other counties as well.

Tuesday, July 28, 2009

Assumption of Risk Defense Remains Viable in Pennsylvania

My most recent article in the Pennsylvania Law Weekly updates the current status of the the assumption of risk doctrine and concludes that it remains a viable defense under Pennsylvania law. You may view the article, entitled "Alive and Well: Assumption of risk doctrine remains a valid defense," by clicking this LINK.

Saturday, July 25, 2009

Upcoming August 27, 2009 CLE Presentation at Mohegan Sun Casinos in Wilkes-Barre, PA

I will be presenting a civil litigation update/IME law update at an upcoming August 27th CLE to be held at the Mohegan Sun Casinos at the Pocono Downs in Wilkes-Barre, Pennsylvania. You may click on the title of this post to be sent to the Mohegan Sun Casino's website to check it out.

The seminar is geared to provide updates to plaintiff's counsel, defense counsel, and claims professionals. The details of the seminar and a registration form are set forth below. Hope to see you there:

Proudly Present a Continuing Legal Education Program On

at the
Thursday August 27, 2009
1 p.m. to 5 p.m.

Followed by Cocktail Hour

1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Ethical Considerations in the Insurance Relationship”
Mathew Keris, Esq., Marshall, Dennehey, Moderator
John Aponick, Esq., Marshall, Dennehey
Frank Brier, Esq., Geisinger Legal Services
Carl Gaugliardo, Esq., Selingo & Gaugliardo

2:30 – 2:45 PM Break

2:45 – 3:45 PM Breakout Sessions:
"Civil Litigation Update/ABC's of IME's
Daniel E. Cummins, Esq., Foley, Cognetti, Comerford, Cimini & Cummins

“Avoiding Medicare Disasters When Settling Your Case”
James Pocius, Esq., Marshall, Dennehey

3:45 – 4:00 PM Break
4:00 – 5:00 PM Breakout Sessions:

“Auto Law Update”
Robert Panowicz, Esq.


“Who Will Be Deciding Your Case: Suggestions for Voir Dire and Jury Selection”
Jill Huntley Taylor, Ph.D.
Director, Dispute Dynamics

2 Substantive & 1 Ethics CLE Credits

The program will be immediately followed by a reception for
the Judiciary serving Northeastern Pennsylvania

Costs for the events:
• Program for claim representatives/risk managers $25.00
• Program for paralegals $25.00
• CLE program for lawyers $125.00
• Cocktail Reception additional $65.00

For reservations, please print and complete the form below and return to PDI or e-mail us at






Make checks payable to:
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737

Wednesday, July 22, 2009

Summary Judgment for Defense in Pike County Trip and Fall Case

On June 19, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas issued an opinion granting summary judgment in favor of the defense in a case involving a plaintiff who tripped and fell allegedly due to the raised edge of a concrete pad at a gas station being a mere one inch above the surrounding asphalt. Melchiorre v. Lords Valley Xtra Mart, No. 1358-2006-Civil (June 19, 2009).

Relying upon, Rocklin v. Hartmann, No. 248-2003-Civil (June 22, 2006) aff'd No. 1673 EDA 2006 (Pa.Super. Feb. 13, 2007), a prior Pike County decision in favor of the defense in a case involving a 1.5 inch elevation, Judge Chelak held that, under the "trivial defect" doctrine, the one inch discrepancy involved in the case at hand was "so trivial that, as a matter of law, Defendants were not negligent in permitting it to exist." The court based its decision, in part, on photographs of the defect supplied in the motion for summary judgment materials.

In so ruling, Judge Chelak rejected the Plaintiff's argument that the trivial nature of the defect should be disregarded on account of the fact that the Defendants had notice of the defect prior to the incident. Judge Chelak held that "[p]ursuant to the trivial defect doctrine, the existence of such defects does not give rise to a negligence claim, with or without notice."

The Plaintiffs filed an appeal on July 1, 2009 and the case is currently pending before the Superior Court of Pennsylvania.

Atlantic Second Citations for Recent Cases of Note

Atlantic Second citations for the following recent cases of note have been identified:

Gunn v. Automobile Ins. Co. of Hartford, 971 A.2d 505 (Pa.Super. 2009)
(Denial of insurer's motion to stay bad faith claim until UIM claim was resolved was not an appealable order)

Freed v. Geisinger Medical Center, 971 A.2d 1202 (Pa. 2009).
(A competent and qualified nurse is not prohibited from giving expert opinion regarding causation issues in medical malpractice case)

Erie Ins. Exchange v. Baker, 972 A.2d 507 (Pa. 2009)
(Household exclusion upheld to preclude insured from recovering UIM benefits)

Monday, July 20, 2009

Pike County Legal Journal Issues Tribute to Colonel Henry Thomas, former Court Crier for Pike County Court of Common Pleas

In this week's Pike County Legal Journal there is an excellent tribute to the late Colonel Henry Thomas, former Court Crier for the Pike County Court of Common Pleas. What a great guy he was--just a solid human being all around.

My first legal job was as a law clerk in the Pike County Court of Common Pleas and I was lucky enough to get to work with Colonel Thomas whenever court was in session and I can say I am a better lawyer and person for it. He helped me to learn some of the basic expectations and courtesies expected in the courtroom and even how local practice was supposed to work in Pike County.

He also was known for taking his job seriously. Being a former military policeman, he was always quick to tell anyone who appeared before the court to take their hands out of their pockets. He would always try to be the first one in the courtroom in the morning so that he could do a "bomb sweep" of the courtroom and the gallery (and he was serious about it). Yet, he would also show he was human in that he would sometimes nod off to sleep during the "eloquent" arguments of various attorneys near the end of a long argument day.

As I am sure there are many lawyers out there who have fond memories of having encountered Colonel Thomas over the years in Pike County, I invite you to submit a comment below of any memories of Colonel Thomas you may have to offer.

I also wanted to share parts of the moving tribute to him that appeared the Pike County Legal Journal:

Col. Henry G. Thomas
October 21, 1912 to October 29, 2003

Court Crier for
The Pike County Court
of Common Pleas

Many bar members can probably fondly recall all the times Col. Henry G. Thomas stood up to call court to order by reciting these words: “OYEZ, OYEZ, OYEZ, all you have ought to do before the Honorable Court, draw near and give your attention and you shall be heard. God Save this Commonwealth and this Honorable Court. [The Honorable President Judge, Harold A. Thomson presiding.]”

For almost two decades, Col. Thomas began every morning of court with the above greeting. He served his role as court crier with no less dedication than he served his country in the military.

Col. Thomas prided himself on checking the courtroom every morning to be certain that all the chairs and tables were cleared of any contraband. A talkative fellow, he could recall endless facts, dates, and other information seemingly effortlessly. He was famous for taking the list of jurors’ names home with him after jury selection and memorizing them. For the remainder of the trial, he knew each juror by name. When taking a verdict from a jury, many of us recall laughing at the way he would ask the jurors if they were content with the verdict ...followed up by the next question ...were they content with each other.

He also liked to help ease young lawyers’ nervousness by sharing with them secrets he learned from the military tribunal of rubbing their hands together to release nervous energy before engaging in a trial. Any time he saw a new lawyer’s face in the courtroom, he always went over to get their card so that he could properly introduce them to the court. When Tuesday morning Motions Court still existed, Col. Thomas made sure that he directed the order of attorneys appearing to present their motions so that no one went out of order of seniority. He was an integral part of court and missed by all who had the pleasure of knowing him.

Col. Henry Thomas had an interesting life. Born in Luzerne County, Pennsylvania, he went on to study at Penn State. He graduated in the late 1930s and through ROTC received a Lieutenant’s Commission in the Infantry. He was made a commander of a CCC camp just before World War II. When the war started he became a MP Officer and went to North Africa to observe the German and Italian prisoners. Later in the war he went to India and Burma as a MP Officer. At the end of the war, he was in Vienna and was involved with the four power policing of the city. He later served in Korea. In his later years, Col. Thomas faithfully served Judge Thomson by calling court to order each morning in his capacity as court crier. Col. Thomas passed away at age 91. He and his wife Naomi are buried in Arlington National Cemetery, Arlington, Virginia. The Pike County Bar Association salutes the many years of faithful service to the court by Col. Thomas. The picture of Col. Thomas with his plaque from the court is on the wall outside the Judge’s Chambers in the Pike County Courthouse.

Sunday, July 19, 2009

Trial Courts Continue to Struggle With Admissibility of Expert Testimony Linking Fibromyalgia to Traumatic Events

As seen in a recent opinion issued by Judge Michael A. George of the Adams County Court of Common Pleas, George v. Frederick, (Adams Co., July 7, 2009), the trial courts of Pennsylvania are continuing to struggle with the issue of whether or not expert testimony should be allowed to support a plaintiff's effort to link his or her alleged fibromyalgia condition to the traumatic event at issue in the case.

The George court addressed the defendant's motion in limine to preclude such expert testimony and held that the issue of whether such testimony is admissible is subject to the Frye test, which requires a showing that the medical community has generally accepted the theory or principle the expert is putting forth in his opinion. The court took the matter under advisement in order that the parties may submit additional information for the court to review, including complete copies of referenced articles on the topic.

Judge Michael did note that while the Plaintiff's expert's methodology of coming to his opinion, i.e. reviewing the medical records and noting his own medical experience on the issue may be a generally acceptable methodology for reaching an opinion in the medical community, the underlying principle that fibromyalgia can result from truama was not yet established by the Plaintiff to be a generally accepted principle in the medical community. The parties were granted an additional 30 days to offer additional materials in support of their respective positions.

Several years ago, back in April of 2005, I issued an article exploring this very topic and suggesting, at least back at that time, there was no general agreement in the medical community that fibromyalgia can result from trauma so as to support the admissibility of such testimony. That article, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases," may be viewed by clicking on the title to this post.

Friday, July 10, 2009

Status of the Prohibition of the Seat Belt Defense in Pennsylvania

Seat Belt Defense Ban Wearing Thin

A Superior Court panel upholds the ban but illustrates its weaknesses

By Daniel E. Cummins
Special to the Law Weekly

Although a Superior Court panel in Gaudio v. Ford Motor Co., PICS Case No. 09-0927 (June 1, 2009), voted 2-1 to uphold the legislative prohibition against the seat belt defense found under 75 Pa.C.S.A. Section 4581(e), the constrained tone of the majority opinion -- and the strong dissent by Senior Judge James J. Fitzgerald -- can be viewed as another assault on what had been previously viewed as an ironclad ban on use of the defense in civil litigation matters.

Gaudio involved a strict products liability action in which the plaintiff attempted to prove that the vehicle's airbag system was defective and caused the plaintiff's decedent's injuries in a single-car crash. During the accident, the decedent's vehicle slid off a road and landed in a ditch. The unbelted decedent was later found in the vehicle by emergency personnel along with an exposed and deflated airbag.

Ford Motor Co. defended the case by asserting that the airbag system was not defective and that the decedent's injuries were caused by other pre-accident factors including the fact that the decedent was not wearing his seat belt, was unnecessarily closer to the steering wheel, and was also reaching down to the floor area at the time the airbag was deployed.

The trial court, in an opinion issued by Pike County Common Pleas Judge Harold A. Thomson Jr., acknowledged the general legislative prohibition against mentioning a plaintiff's non-use of a seat belt during a civil trial. However, the trial court judge, striking a blow against the rarely questioned prohibition against the seat belt defense, held that defendants should be allowed to use the defense in very limited circumstances, such as the Gaudio case, where the plaintiff was seeking a monetary recovery in a matter where the issue of the lack of seat belt use by the injured party was a key factor in the resolution of the central question of whether the airbag system was defective. More specifically, the trial court felt that, as long as the defense was not being used to assert contributory negligence on the part of a plaintiff, it could perhaps be used for other limited purposes relevant to the case.

Thomson's decision was originally analyzed in my Oct. 1, 2007, Pennsylvania Law Weekly column titled "Time to Unbuckle the Seat Belt Defense?" That article noted Thomson's finding that the seat belt defense should be allowed in a limited fashion in certain cases "raises a question as to the continuing validity of the legislative bar against the use of the 'seat belt defense' in all civil matters."

In that previous article, it was also proposed that, in this day and age, now over 20 years after the seat belt law went into effect in 1987, the time had come to allow for the seat belt defense as an additional incentive to those last remaining non-compliant drivers to use seat belts, particularly given all of the scientific evidence existing today confirming that seat belts serve to prevent or minimize injuries in motor vehicle accidents.

However, the previous article concluded with the notion that, in light of the clear statutory mandate prohibiting the seat belt defense in civil litigation matters, it appeared that the change in the law would have to come from the Legislature as opposed to the courts of Pennsylvania.

A Constrained Superior Court

As anticipated, the judges in the majority of the Superior Court's decision in Gaudio opted to follow the letter of the law of the statutory prohibition against the seat belt defense and "construe[d] the legislative intent of the provision to be a blanket exclusion of evidence of seat belt usage in civil actions for any purpose, including to prove not only contributory negligence but also defect, causation and/or damages."

The majority in Gaudio also noted that it was not a proper function of the court to insert its judgment as to the propriety of the prohibition against the seat belt defense where the Legislature had already resolved the issue by a clearly worded statute. Thus, the majority opinion, including the emphasis that any change in the law would have to come from a Legislative amendment, appears to indicate that the court felt constrained to follow the law in this regard. This apparent dissatisfaction of the Superior Court with the scope of the prohibition against the seat belt defense can be viewed as another chipping away of the strength of that prohibition.

Fitzgerald's Dissent

The ironclad prohibition against the seat belt defense was also dented by Fitzgerald's clear dissent on the seat belt issue and his confirmation that the state's appellate courts have struggled with some of the issues involved and would benefit from guidance from the Pennsylvania Supreme Court on the question of the continuing validity and breadth of the prohibition.

In his dissenting opinion, Fitzgerald cited Daddona v. Thind, 891 A.2d 786 (Pa. Commw. 2006), and Foley v. Clark Equipment Co., 523 A.2d 379 (Pa. Super. 1987), in support of his decision that the trial court judge had properly allowed Ford Motor Co. to introduce evidence of the decedent's seat belt use, or lack thereof. Since contributory negligence was not a valid defense in this products liability case, the use of the seat belt defense in that regard was not squarely addressed by the Gaudio court. However, Fitzgerald noted that those prior appellate decisions supported allowing the seat belt defense to be utilized at least for the purposes of showing the lack of a defect (with respect to the airbags) and attempting to defeat any causation argument put forth by the plaintiff.

Time for Change

The time has come for a change in the law. As noted in my previous article on this topic, in more than 20 years since the passage of the law prohibiting the seat belt defense, scientific evidence has clearly established that using seat belts minimizes the chances of death and can minimize the extent of injuries in motor vehicle accidents. This evidence is so well-established that the wearing of seat belts for safety purposes is now deemed as common sense by the general public.

Compared to the few people who routinely used seat belts more than 20 years ago when the seat belt law was first passed, a large majority of motorists now use seat belts on such a routine basis that a seat belt defense at trial would likely only be applicable to that small number of non-law-abiding motorists lacking common sense and still foolish enough to break the law by riding in motor vehicles without belting up.

Fears by the plaintiff's bar that unbelted parties injured or killed through no fault of their own in a motor vehicle accident may be completely and unfairly barred from recovery by virtue of the injured party's failure to wear a seat belt can be tempered by Legislative limitations on the breadth of the seat belt defense. For example, the Legislature may mandate that an injured party's recovery may be limited up to a certain percentage but not entirely barred by the seat belt defense. Plaintiff's fears in this regard may also be addressed by their ability to secure expert witnesses to defeat the seat belt defense by showing that, even if the Plaintiff had been wearing a seat belt, the forces of the impact would have resulted in the same or similar injuries.

Realistically speaking, the allowance of the seat belt defense in automobile cases would really be no different than the currently allowed defense in premises liability cases that people have a duty to exercise due care in protecting themselves from injury by watching where they are walking. Also, in almost every situation, a plaintiff has a duty to mitigate his damages. What better way is there for a motor vehicle occupant to mitigate his potential damages and injuries than by simply clicking on a seat belt? Click. Done.

Last but certainly not least, it would also appear that the abolishment of the prohibition against the seat belt defense would further the now currently recognized policy of cost containment with respect to spiraling automobile insurance costs by limiting the damages recoverable by those few injured parties who continue to break the law by still refusing to wear seat belts after all of these years.

Only the Legislature Can Act

Treatises have noted that a substantial minority of jurisdictions allow for the seat belt defense given the obvious effectiveness of seat belts in reducing fatalities and injuries. See ""onuse of seatbelt as reducing amount of damages recoverable," 62 A.L.R.5th 537 (1998) by Christopher Hall. In those jurisdictions, defendants are permitted to point to the injured party's failure to use the seat belt to support contributory negligence or mitigation of damages defenses in automobile accident cases.

Pennsylvania should join those jurisdictions. However, it appears that any such change in the law will have to come from the Legislature. Public support may be secured for this change by asserting that an amendment doing away with the prohibition against the seat belt defense could, as noted, ultimately serve to contain the spiraling costs of automobile insurance rates for the law abiding citizens of Pennsylvania who do wear their seat belts as required.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins.

This article is reprinted here with permission from the June 29, 2009 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Wednesday, July 8, 2009

Pennsylvania Supreme Court to Address UIM Benefits Exclusion for Claimants Receiving Worker's Compensation Benefits

On July 7, 2009, the Pennsylvania Supreme Court granted a Petition For Allowance of an Appeal from a Commonwealth Court decision in the case of Heller v. Pennsylvania League of Cities and Municipalities, 406 WAL 2008 (July 7, 2009) to address the issue of whether or not the Supreme Court should strike down an exclusion in the defendant's policy that provided that any person receiving worker's compensation benefits was ineligible to receive UIM/UM motorist benefits for the same incident.

According to the Commonwealth Court's decision in the same case, found at 950 A.2d 362 (Pa.Cmwlth. 2008), this case involved a declaratory judgment complaint that was brought against a municipal insurer seeking a judicial declaration that the exclusion at issue violated public policy. The underlying claim involved a police officer who had been injured in a motor vehicle accident during the course of his employment and received worker's compensation benefits

The Commonwealth Court, in a decision authored by Judge Colins, held that the policy's exclusion of underinsured (UIM) benefits where worker's compensation benefits were available to the claimant was not void as against public policy. It remains to be seen how the Pennsylvania Supreme Court will decide this important issue.

Sunday, July 5, 2009

Status of Potential Bill Allowing for Jury Trials in Pennsylvania State Court Insurance Bad Faith Cases

According to an announcement by the Pennsylvania Defense Institute, Senate Bill 746, which contained a provision to allow for jury trials in insurance bad faith cases has been tabled by the Pennsylvania Legislature for the time being.

This bill originally dealt only with the entirely separate issue of immunity for physicians reporting suspected drug abuse/sales to authorities. A provision was then added to the bill that would amend Pennsylvania’s insurance bad faith statute to allow jury trials.

It has been said that this provision is generally favored by members of the plaintiff's bar and generally opposed by members of the defense bar. Since the bad faith statute was passed in 1990, i.e. nearly 20 years ago, Pennsylvania state court bad faith actions have proceeded as non-jury trials.

The Pennsylvania Defense Institute notes that, although the bill is currently "tabled," it can be revived for consideration at any time. It is anticipated that there may be efforts to revisit the bill in the Fall when the Pennsylvania Legislature reconvenes.

Another Post-Koken Trial Court Rules That Evidence of Insurance is Admissible

Another Pennsylvania trial court has ruled that evidence of insurance may be permissible in a post-Koken motor vehicle accident litigation , i.e. when a lawsuit against a defendant-driver and the related underinsured (UIM) claim are joined together under a single lawsuit.

In the case of Six v. Phillips, (C.P. Beaver, June 30, 2009), Judge Kwidis denied efforts to sever the case into separate lawsuits when he denied preliminary objections filed by Erie, the insurance company that covered the defendant-driver on the third party lawsuit side of the case. A copy of this case may be ordered from the Pennsylvania Law Weekly for a small fee by calling 800-276-7427 and giving the PICS Case No. 09-1100.

In so ruling, the court rejected arguments that the combined lawsuit would prejudice the defendant-driver by impermissibly allowing evidence of the insurance amounts in violation of Pa.R.C.P. 411 (prohibiting evidence of insurance during civil trials). Judge Kwidis noted that, while evidence of insurance is ordinarily not permitted under Rule 411 to show that a defendant had coverage, the Rule does allow evidence of insurance when it is offered for a separate, relevant purpose such as for assisting the jury in determining whether or not a tortfeasor was underinsured in a post-Koken case.

The decision of Judge Kwidis of the Beaver County Court of Common Pleas is consistent with other post-Koken trial court decisions such as the decision of Judge Gregory Chelak in the Pike County case of Jannone v. McCooey.

For more analysis of these types of cases, please click on the Label "Koken" on the right side of this blog.

Wednesday, July 1, 2009

The Declaration of Independence - July 4, 1776

During this upcoming 4th of July weekend, we will celebrate our Declaration of Independence, a document written 233 years ago by a then 33 year old lawyer by the name of Thomas Jefferson.

Since many of us have probably not read this important document since an 8th grade social studies class, I thought I would offer up the text of the Declaration for your reading enjoyment and appreciation as part of the weekend celebration.

Thomas Jefferson was part of a Virginia delegation that planned to ask the Second Continental Congress to sever its ties from Great Britain. While that historic body was meeting, Jefferson was assigned to a committee that was asked to write a declaration which enumerated the causes that led to that severance. Below is the text of the eloquent document he came up with that remains an enduring statement of basic human rights:


The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Practice Tips From Supreme Court Justice Antonin Scalia

According to information gathered from several news articles, U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner spoke at the State Bar of Texas annual meeting within the last few days and discussed how to persuade judges with the written word and in oral argument.

Garner, a Texas lawyer and president of a legal advocacy consulting firm, is co-author with Scalia of "Making Your Case: The Art of Persuading Judges," published last year. The two, and in particular, Justice Scalia, served up quite a few helpful practice tips during this presentation.

Brief Writing

For writing briefs, Scalia said, "Treasure simplicity." He also told the attendees, "You don't get any credit for eloquence," and added, "Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple case complex." This would obviously also apply as advice for oral argument as well.

Attorneys were advised to never underestimate the power of a short sentence. Turning to grammar, Scalia endorsed the use of conjunctions at the beginning of a sentence, even starting a sentence with "but."

As far as the use of contractions, Scalia and Garner have agreed to disagree, but Justice Scalia favored leaving them out of briefs. Scalia dubbed them "Jacobin" and argued they "pull everything down to the street level."

Scalia also frowned upon a brief containing lots of italics for emphasis. He deadpanned that legal writing with lots of italics tends to read "like a high school girl's diary."

According to the articles reviewed, Scalia saved his sternest warning for the issue of citations. He strongly recommended characterizing cited precedents accurately. The Justice was quoted as saying, "When a judge sees that you are playing fast and loose with a citation, he is not going to believe the rest of your brief."

Another hot topic discussed was the use of footnotes. Scalia, despite his co-author's strongly held alternative view, endorsed the use of footnotes -- even to advance arguments. However, he reiterated that he wants citations placed in the text.

Oral Argument

As for oral argument, Scalia told the lawyers to welcome questions from the bench, to be likable, and to make every effort to enunciate words correctly and carefully, particularly justices' names and any Latin words. In other words, never use words you can not pronounce. He counseled lawyers to look judges in the eye when addressing the court.

Scalia also noted a major pet peeve of his: when lawyers respond to a hypothetical example by saying it is "not this case." Going through his mind at that point, Scalia said, is the thought, "I know it's not this case, you idiot." But appellate judges must make decisions that govern many cases, not just the one before them, he explained.

Scalia and Garner gave other pieces of advice, such as speaking firmly as if presenting the law and not an opinion on what the court's decision should be. They also recommended simply carrying only an empty manila folder with notes written on it to the argument as opposed to a distracting array of documents and folders. It was also recommended that firms choose the best-equipped lawyer on the team to present the argument.

Also recommended, as a matter of respect, was yielding to the judge's speaking, even if that means stopping midword.

Information for this post was gathered from the following sources:

"Scalia Airs Pet Peeves at Texas Bar Meeting" Posted Jun 29, 2009, 09:14 am CDT By Debra Cassen Weiss on the ABA Journal website (

"Antonin Scalia advises lawyers on effective legal writing in Dallas" by Matthew Waller of The Dallas Morning News (June 28, 2009).

"Scalia Discusses Conjunctions, Contractions and Pet Peeves at Texas Bar Event" by
Miriam Rozen for the Texas Lawyer (June 29, 2009).