Decision Drives Home Importance of Preserving Objections and Issues for Appeal

In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

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MARKS O'NEILL, O'BRIEN, DOHERTY & KELLY

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BENNETT BRICKLIN & SALTZBURG

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MINTZER SAROWITZ, ZERIS, LEDVA & MEYERS

SHAY, SANTEE, KELHART & DESCHLER, LLC

McCORMICK & PRIORE

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Local Rule Adopted in Monroe County Regarding Submission of Exhibits at Hearings and Trials (Effective Today, July 1, 2025)

Here is a LINK to the new Monroe County Local Rule of Administration 5103, entitled “Custody of Exhibits. Special Provisions,” which goes into effect today, July 1, 2025.

This rule requires lawyers to put the exhibits that they intend to introduce during their hearing or trial on a USB flash drive.

The attorney presenting the exhibits will then either display the exhibit up on a screen in the courtroom, or provide paper copies of exhibits as duplicates of what is on the flash drive.

In any event, under the rule, the flash drive will be the exhibit that is introduced.

Under the rule, the presiding judge may waive the flash drive submission requirement for good cause shown.

It is noted that the rule has technical requirements for the maximum size of each file on the drive, that being 50 MB.

The rule also requires lawyers to save each exhibit as a separate file on the flash drive.

If an exhibit exceeds the 50 MB limit, it has to be split up.

The rule also requires that the flash drive have a separate file for an index of exhibits.

The rule otherwise specifies what audio, video, documents and photograph files must be used.

It has been reported that the rationale for the rule is that, on appeal, the record before the trial court will be transmitted electronically to the appellate court. Absent the use of the above procedure, any paper exhibits would have to be digitized by court staff before the record could go up on appeal, which puts a burden on the courthouse workers, especially when there is a large trial record.

It has been noted that the court is also trying to reduce paper storage in the courthouse.

Again, this rule goes into effect on July 1, 2025.

Note also that a similar local rule is already in effect in the Lackawanna County Court of Common Pleas.

Nursing Home's Effort to Have Lawsuit Dismissed By Virtue of an Arbitration Clause Denied

In the case of Perry v. Saber Healthcare Holdings, LLC, No. 2024-CV6608 (C.P. Lacka. Co. June 6, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed in a nursing home malpractice case.

According to the Opinion, the Plaintiff sustained injuries as a result of a fall.  Thereafter, the Plaintiff, through his daughter pursuant to her Power of Attorney, asserted claims of negligence, breach of contract, and other claims against the facility.

Among other issues, the Defendant facility raised Preliminary Objections asserting that the cause of action filed was required to instead be submitted to binding arbitration pursuant to an arbitration agreement executed by the daughter at the time the father was admitted to the facility.

The court ruled that, since the Power of Attorney that the father provided to his daughter expressly stated that the daughter was not authorized to enter into any arbitration agreement on his behalf with any skilled nursing facility or personal care home, the daughter could not bind her father to any arbitration agreement.

Judge Terrence R. Nealon
Lackawanna County 

Accordingly, Judge Nealon found that there was no enforceable arbitration agreement in place. As such, the Preliminary Objection seeking to have this case transferred to arbitration was overruled.

The court otherwise ruled that certain negligence allegations submitted on behalf of the Plaintiff were not barred by the gist of the action doctrine even though some of the claims presented in this case were based in contract. The court found that the claim for negligent hiring, supervision and retention were collateral to the contract and not contingent on the breach of any terms of the admission agreement.

The court otherwise sustained the demurrer filed against the Plaintiff's claim for intentional infliction of emotional distress given that the Complaint did not allege conduct that was so outrageous in character and extreme in degree as to exceed all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.

Anyone wishing to review a copy of this decision may click this LINK.

Trial Court Judge Addresses Post-Trial Issues Including Issues With Verdict Slip and With Bifurcation of Trial

In the case of Major v. Five Star Equipment, Inc., No. 2020-CV-3550 (C.P. Lacka. Co. May 9, 2025 Nealon, J.), the court addressed several post-trial issues after a defense verdict in a case involving a pedestrian who was hit by a motor vehicle.

Of note, the court addressed various issues raised with regards to the content of the Verdict Slip and factual cause questions, as well as with respect to the bifurcation of the liability and damages phases of the trial.

After providing a thorough review of the applicable law, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that there were no errors with regards to the content of the Verdict Slip and the various questions presented to the jury on that slip.

The court otherwise noted that the bifurcation of the trial was warranted under the circumstances presented in the case, including the fact that counsel had underestimated the number of days it would take to try the case during the pre-trial proceedings.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Weekly Case Alert” on www.Law.com (June 4, 2025).

Court Rules that Defendant's Summary Judgment on Plaintiff's Claims Also Eradicates Cross-claims by Co-Defendant

In the case Robinson v. Phila. Intern. Airport, 263 C.D. 2002 (Pa. Cmwlth. June 9, 2025 Fizzano Cannon, J., McCullough, J., and Hannah Levitt, J.) (Op. by Fizzano Cannon, J.), the court granted the interlocutory appeal and addressed Motions In Limine in a municipal liability personal injury case.

This matter arose out of a slip and fall incident at the Philadelphia International Airport.  The Plaintiff apparently took a trip prior to her flight.

In this appeal, the court noted that, where summary judgment had been granted against the Plaintiffs’ claims against the municipal Defendant, that Defendant could not be held liable for purposes of contribution or indemnity relative to the Co-Defendants.

The court more specifically noted that, where the municipal Defendant had secured summary judgment on the common law ground that it did not have actual or constructive notice of the condition on the land that the Plaintiff claimed was responsible for her injury, that Defendant likewise could not be held liable for indemnity on the cross-claims asserted by the Co-Defendants.

The Commonwealth Court additionally noted that, because the non-municipal Defendant did not oppose the municipal Defendant’s summary judgment motion against the Plaintiff’s claims, which claims were also the basis of the non-municipal Defendant’s crossclaims, that non-municipal Defendant was found to have waived any right to contest the granting of summary judgment.

That waiver and the entry of summary judgment precluded the non-municipal Defendant from later moving to have the municipal Defendant added to the verdict sheet under the Fair Share Act. This was so because the municipal Defendant, by virtue of summary judgment decision, had already been adjudicated as not being a joint tortfeasor with the Co-Defendant relative to the claims of the Plaintiff.

The Court ruled that a subsequent trial judge’s Order granting the non-municipal Defendant’s Motion In Limine to allow evidence against the municipal Defendant and to place it on the verdict sheet therefore violated the coordinate jurisdiction doctrine. As such, the court on appeal ruled that the non-municipal Defendant could certainly assert that it was not liable on the Plaintiff’s claims at trial, but that Defendant could not argue that the municipal Defendant was liable.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Alex P on www.pexels.com.

Appellate Court Addresses Applicability if an Absolute Auto Exclusion in a Business General Liability Policy

In the case of Chris Eldredge Containers v. Crumb & Foster Specialty Ins., 2025 Pa. Super. 92 (Pa. Super. April 24, 2025 Lazarus, P.J., King, J., Lane, J.) (Op by. Lazarus, P.J.), the court addressed a coverage issue in this declaratory judgment action involving various coverage issues, including the applicability of an automobile exclusion in a business policy in a case involving an accident that involved a service truck driven by an employee of the carriers' insured.

The appellate court noted that it was proceeding under a de novo standard of appeal, meaning that it was not limited by the trial court's rationale and could affirm or reverse the trial court decision on any basis.   

The Pennsylvania Superior Court ruled that the absolute auto exclusion, which excluded coverage for bodily injury under the policy for any incident arising out of the use of an auto, was found to be ambiguous in the context of this policy and was, therefore, found to be not enforceable.

The Superior Court additionally ruled that the ownership clause in the absolute auto exclusion was found to be ambiguous when it failed to specify whose ownership, maintenance, use, or entrustment served to trigger that exclusion.

In the end, the appellate court reversed the trial court decisions and found that the carriers did owe a duty to defend and indemnify its insured under the facts presented.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Court Summaries” in the Pennsylvania Bar News By Timothy L. Clawges (June 9, 2025).

Source of image:  Photo by Vlad Deep from www.unsplash.com.

Trial Court Grants UIM Carrier's Motion to Sever and Stay a Companion Bad Faith Claim in a Post-Koken Case

In the case of Bixler v. Erie Insurance Exchange, AD No. 2024-CV-11155 (C.P. Butler Co. June 5, 2025 Streib, J.), the court issued an Order in a post-Koken case granting the UIM carrier’s Motion to Sever and Stay the bad faith claim from the UIM claim. The court did not issue any Opinion with this Order.

Anyone wishing to review a copy of this Order may click this LINK.

I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Court Applies Forum Selection Clause Contained in Pre-Surgery Consent Form To Transfer Medical Malpractice Case Out of Philadelphia Venue to Bucks County

In the case of Somerlot v. Jung, Sept. Term 2023, No. 3138 (C.P. Phila. Co. Nov. 25, 2024 Bright, J.), the trial court issued a Rule 1925 Opinion requesting the Pennsylvania Superior Court to uphold the Philadelphia County trial court’s decision to transfer a medical malpractice case from Philadelphia County to Bucks County.

According to the Opinion, this matter arose out of an alleged medical malpractice claim related to a surgery that was rendered in Bucks County to a Bucks County resident Plaintiff by a Bucks County physician/medical practice.

The court based its decision on transferring the case from Philadelphia County to Bucks County on a valid forum selection clause that was contained in a pre-surgery consent form executed by the Plaintiff.

The Plaintiff pointed to the fact that one of the Defendants, a medical device manufacturer, had previously stipulated with the Plaintiffs that venue was proper in Philadelphia as to that Defendant. However, the trial court noted that the propriety of venue in Philadelphia was not dispositive based on the fact that a Defendant had previously stipulated to venue in Philadelphia. 

Here, the court noted that the injured Plaintiff had contracted to litigate in a different, but also proper venue when the Plaintiff executed the consent form. The trial court held that it was giving preference to the Plaintiffs’ original choice of forum, as reflected in the executed consent form. 

The court additionally noted that litigating the entire case in Bucks County would void splitting the case just as effectively as reversing the transfer of moving the matter back to Philadelphia as was requested by the Plaintiffs. 

The trial court additionally stated that there were no exceptional circumstances present in this case that would warrant straying from the general principle that a valid forum selection clause is to be honored by the courts.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 27, 2025).

Superior Court Overturns Med Mal Defense Verdict Based on Erroneous Evidentiary Rulings by Trial Court

In the case of Hagelauer v. Mainline Emergency Medicine Associates, LLC, No. 2064 EDA 2024 (Pa. Super. June 2, 2025 Panella, P.J.E., Beck, J., and Ford Elliot, P.J.E.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court addressed various issues raised following the entry of a defense verdict in a medical malpractice case.

According to the Opinion, the allegations pertained to the treatment, or lack thereof, relative to a deceased Plaintiff who suffered cardiac arrest.

The Pennsylvania Superior Court overruled the defense verdict based upon a finding, in part, that the trial court had improperly barred the Plaintiffs from cross-examining the Defendants’ expert about an article that the expert had authored which conflicted with his trial testimony.

The Superior Court noted that an expert's authoring of an article and including a reference to the article in his CV constituted an adoption of the information contained in the article by that expert. The appellate court found that it was not credible that an expert would author an article that she or he did not adopt and support.

As such, the preclusion by the trial court of the cross-examination of the Defendant's expert on that article was found to be reversible error as the Superior Court ruled that the jury missed out on important information that might have colored its evaluation of that expert’s credibility.

The Superior otherwise addressed a separate issue of hearsay within hearsay that arose during the course of the trial.

The appellate court noted that it was not an abuse of discretion by the trial court to have excluded a note written by the Plaintiff as inadmissible double hearsay.

The note at issue included a compound statement referred not only to the Plaintiff's state of mind, but also referenced medical instructions.

While the portion of the statement that referenced the Plaintiff's state of mind may have been admissible under Pa.R.E. 803(3)'s hearsay exception related to a declarant's statement of their then-existing state of mind or condition, here, the court noted that compound statements such as the one at issue were not admissible.

Rather, the court noted that, given the existence of hearsay within hearsay, the trial court properly excluded the evidence.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Bad Evidentiary Ruling In Med Mal Trial Spurs Pa. Appeals Court To Toss Hospital’s Defense Verdict,” By Aleeza Furman of The Legal Intelligencer (June 4, 2025).

Soure of image: Photo by Katrin Bolovtsova on www.pexels.com.

Federal Court Addresses Request to Amend Complaint in a UIM Bad Faith Claim

In the case of Binotto v. Geico, No. 3:22-CV-210 (W.D. Pa. May 30, 2025 Haines, J.), the court denied a Plaintiff’s Motion for Leave to File a Third Amended Complaint in order to allege bad faith against the carrier.

According to the Opinion, the Plaintiffs had previously filed a Second Amended Complaint which included allegations of bad faith against Geico. However, the Plaintiffs opted to withdraw that Second Amended Complaint under an indication that they thought that the case would settle with the resolution of the summary judgment proceedings. 

When the case did not settle after the court’s resolution of the summary judgment motions, the Plaintiffs then presented this Motion for Leave of Court to File a Third Amended Complaint in order to put the bad faith claim back into play.

The court reviewed Federal Rule of Civil Procedure 15(a), which sets out the standard for granting leave to amend a Complaint when a responsive pleading has already been served. Under that rule, a party may amend its pleading only with the opposing party’s written consent or with leave of court. The rule additionally states that the court should freely give leave of court when justice so requires.

However, the court in this matter noted that the policy favoring liberal amendments is not without bounds. The decision on whether to grant or deny a Motion for Leave to Amend still rests within the sound discretion of the district court.

The court noted that a federal district court may deny leave to amend a Complaint where it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith, or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.

In this case, the court found that there is no prejudice to the Defendant by the proposed Third Amended Complaint. The court additionally found that, while the Motion for Leave was filed late in the litigation, the court did not find that the Plaintiff acted with any undue delay, bad faith, or dilatory motives. The court also noted that the trial date was still several months away.

Accordingly, the court addressed the element of whether the allowance of an amendment would be futile under the case presented. In this regard, the Plaintiffs asserted that the Defendant carrier never had any intention of fairly and in good faith attempting to negotiate a settlement.

Under the facts presented in this case, the court found that the Defendant carrier’s delay in offering its settlement amount until the summary judgment proceedings were resolved and the Defendant carrier’s subsequent low settlement offer did not amount to clear and convincing evidence of bad faith in any event.

The court also rejected the Plaintiff’s argument that the Defendant acted in bad faith by failing to investigate, allegedly misrepresenting policy provisions, failing to make a reasonable offer in failing to explain the offer. The court found that there were no facts presented in the proposed Third Amended Complaint to support those inferences drawn by the Plaintiff.

Accordingly, the court denied the Plaintiff’s Motion for Leave to File a Third Amended Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Joseph A. Hudock, Jr. of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Superior Rejects Prothonotary's Rejection of a Writ of Summons That Had an Electric Signature

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025 Stabile, J., McLaughlin, J., and Lane, J.) (Op. by Lane, J.), the appellate court vacated a Pike County trial court’s Order granting a Motion for Judgment on the Pleadings in favor of the Defendant.  In the lower court proceedings, the trial court had dismissed the action with prejudice based upon the filing of a Praecipe for the Writ of Summons beyond the statute of limitations.

In this case, the Pennsylvania Superior Court noted that the Complaint was timely filed where the Prothonotary’s office acknowledged receipt of the Complaint on the last day of the limitations period.  The appellate court also noted that the Prothonotary lacked the authority to refuse to docket that Complaint based upon a non-compliance with local rules of court where the Complaint otherwise met the requirements of the Pennsylvania Rules of Civil Procedure.

This case involved allegations that the Plaintiff was injured while attempting to use an inflatable water slide erected for guests use at the Woodloch Resort.

Six (6) days before the expiration of the applicable two year statute of limitations, the Plaintiff’s attorney mailed an electronically signed copy of a Praecipe For Writ of Summons through one day delivery by the Postal Service to the Prothonotary’s office. The USPS tracking information indicated the Praecipe was delivered the following day. However, the Prothonotary’s office did not docket the Praecipe for the rest of the week.

Rather, a clerk from the Prothonotary’s office contacted the Plaintiff’s counsel on the last date of the limitations period to advise that the Praecipe would not be docketed because it had an electronic signature in violation of the local rules that required original signatures.

Plaintiff’s counsel then prepared a hand-signed Praecipe that was delivered overnight and docketed the day after the statute of limitations had expired.

The Defendants’ moved for judgment on the pleadings under an allegations that the suit was not filed within the statute of limitations. 

The trial court granted the motion based upon a strict application of the statute of limitations. The trial court noted that it did not hold any oversight over the policies and procedures of the Prothonotary’s office.  The trial court found that the properly filed Praecipe was not docketed until after the statute of limitations had expired.

The Superior Court reversed.  The appellate court first confirmed that there was no requirement in the Rules of Civil Procedure for a Praecipe to be hand-signed by a party or their attorney, as the rules contemplated that a “signature” could include a computer-generated signature.

The Superior Court additionally held that, under the rules, documents mailed to the Prothonotary’s office were deemed to be filed when received by that office as a litigant would have no control over when that office would stamp and process the filing.

The Superior Court additionally confirmed that the Pennsylvania Rules of Civil Procedure expressly prohibited the rejection of a filing that complied with those Rules of Civil Procedure where that filing did not meet the requirements of a local rule.

The Superior Court also found that the Prothonotary has no discretion to reject documents due to defects, as such authority lays with the trial court.

Accordingly, the Superior Court agreed that the Complaint was timely filed. The rationale of the Superior Court was that the Prothonotary had acknowledged that it had received the filing prior to the expiration of the statute of limitations.  The Court reierated that the Prothonotary had no discretion to refuse to docket the Praecipe as it complied with the requirements of the Pennsylvania Rules of Civil Procedure.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert” on www.Law.com (June 3, 2025).

Claims of Recklessness and Punitive Damages Allowed To Proceed in Premises Liability Case

In the case of K.H. v. Mill Run Campground, No. 2197 of 2023, G.D. (C.P. Fay. Co., March 10, 2025 Vernon, J.), the court denied Preliminary Objections filed by a Defendant on claims of recklessness and for punitive damages in a premises liability case. According to the Opinion, the case involved a young child who fell off a set of bleachers.

The court overruled the Defendant’s Preliminary Objections and held that, where a Plaintiff stated a cognizable negligence claim and generally averred that the Defendant acted with the state of mind necessary for an award of punitive damages, the Defendant’s challenge to these types of claims was premature such that the Preliminary Objections would be denied. The Defendant was advised that the issues could be revisited in a Motion for Summary Judgment after the close of discovery.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).

Issues of Fact Defeat Summary Judgment Relative To Fall Allegedly Caused by Floor Mat

In the case of Montanez-Fontanez v. Lehigh Valley Health Network, No. 2023-CV-0880 (C.P. Leh. Co. Dec. 17, 2024 Reichley, J.), the court denied summary judgment in a case involving a Plaintiff who was allegedly injured when the wheel was of a walker she was using caught on a worn floor mat and caused her to fall at the entrance to the Defendants’ building where she was visiting for physical therapy. The court denied the Motion for Summary Judgment based upon the existence of genuine issues of material fact that required resolution by a jury.

The court found that genuine issues of material fact existed as to whether the Defendants had notice of the alleged dangerous condition asserted by the Plaintiff.

The court also found that a genuine issues of material fact existed as to whether the alleged condition of the floor mat amounted to an unreasonable risk of harm for visitors to the facility.

Based upon these issues of fact, the court denied the Motion for Summary Judgment.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 8, 2025).

Source of image:  Photo by RDNE Project on www.pexels.com.

Federal Western District Court Puts the Brakes on Evidence of Certain Insurance Matters in a Post-Koken Case

In the Post-Koken federal court case of Binotto v. Geico, No. 3:22-CV-210 (W.D. Pa. May 30, 2025 Haines, J.), the court granted the Defendant UIM carrier’s Motion In Limine to preclude evidence of the UIM limits or premium paid at the trial of a post-Koken matter. 

The court addressed the argument of whether such evidence is relevant in a post-Koken trial. Included in that assessment was whether or not the probative value of such evidence was substantially outweighed by the danger of unfair prejudice or confusing of the issues presented. In this regard, the court cited to Federal Rules of Evidence 401, 402, and 403.

The court in this Binotto matter stated that its research revealed that the courts in Pennsylvania are split on this issue. This court noted that it was choosing to follow the case of Lucca v. Geico Ins. Co., 2016 WL 3632717 (E.D. Pa. July, 2016) and its progeny. 

Relying upon that case law, the Binotto court held that the “limits and premiums of Geico’s insurance policy offered no benefit to fact finder’s determinations of the value of Plaintiffs’ injuries.”

As such, the court ruled that evidence of the carrier’s policy limits and premiums paid were irrelevant. 

The court additionally held that, even if such evidence was somehow found to be relevant to the injury and damages assessments, any probative value of such evidence was substantially outweighed by the risk of unfair prejudice to the Defendant carrier.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Joseph A. Hudock, Jr. of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Instawalli on www.pexels.com.

Pennsylvania Supreme Court Expands Ability of Claimants to Secure Recoveries in Work-Related Fatal Accident Matters

In the case of Steets v. Celebration Fireworks, Inc., (WCAB), No. 3 MAP 2024 (Pa. May 30, 2025) (Op. by Donohue, J.), the Pennsylvania Supreme Court overturned decades of precedent in order to allow a new available of worker’s compensation claims to go forward. 

In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect benefits related to claims for disfigurement and injury.

Justice Christine Donohue authored the Opinion and was joined by Chief Justice Deborah Todd and Justices Kevin Dougherty, Sallie Updyke Mundy and Daniel McCaffery. Justices David Wecht and Kevin Brobson dissented in separate Opinions.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK.

Justice Wecht's Dissenting Opinion can be viewed HERE.

Justice Brobson's Dissenting Opinion can be viewed HERE.


Source: Article – “Pa. High Court Rejects Years of Precedent Barring Recovery of Benefits For Workers Who Died From Work-Related Injuries,” By Riley Brennan The Legal Intelligencer (May 30, 2025).

ARTICLE: 5 Tips to Improve Your Chances for Success at a Mediation

The below article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission from the publisher.

5 Tips to Improve Your Chances for Success at a Mediation


By Daniel E. Cummins

The current trend in civil litigation matters, especially with more generous, headline grabbing jury verdicts coming down in the time since the pandemic, is that most cases are being resolved by way of nonbinding mediations. Experience shows that taking the following steps in advance of mediations and at mediations can improve one’s chances for a favorable settlement of a matter.

Trust Your Selected Mediator


Whether your mediator has a background as a plaintiff’s attorney or an insurance defense attorney, or both over the course of their career, every mediator worth their salt understands the need to approach a mediation from an entirely neutral perspective. It can be safely stated that most, if not all, mediators take pride in their ability to set aside any preconceived notions with respect to litigation matters and thereby offer the parties a balanced view of the pros and cons of the claims and defense presented.

And so once you have vetted and selected your mediator, you should trust your mediator to conduct a fair review of the file in order to assist all parties in working toward an amicable resolution of the matter.

Zoom Is Just as Effective


In the time since the COVID-19 pandemic, the use of remote meeting platforms, such as Zoom, has become the norm for mediations and arbitrations. Experience advises that virtual mediations are just as effective as mediations that are held in person.

The use of remote means to complete meditations also has the added benefit of reducing the stress on the parties involved. Plaintiffs still get to have their day in court but are able to do so from the comfort of their own home or their attorney’s office. Claims professionals participating remotely will have avoided the stress and expense attendant with being required to travel to be present at an in-person and may thereby be in a more comfortable frame of mind as the negotiations begin.

Whether a mediation is set to take place virtually or in person, the key to your success at a mediation, regardless of the format, is to be fully prepared to present your client’s case at the mediation.

Be Prepared


On the plaintiff’s side of a mediation, the day of the mediation is usually going to turn out to be that client’s one day in court. On the defense side, the mediation is a day for the carrier to try to close another file by way of a reasonable settlement and thereby save on further defense costs. As such, whether counsel is on the plaintiff’s side of the matter or the defense side of the matter, with the attorney serving as the mouthpiece for the client, the client deserves counsel that is fully prepared and knows the file inside and out.

Accordingly, in preparation for a mediation, counsel should expect that opposing counsel will be perusing every page of every document in the file in an effort to prepare for the meeting. As such, the file should be equally thoroughly reviewed on your own side as you never know what opposing counsel may find in the deepest corners of the file that could hurt your client’s case.

For example, a gold mine in this regard includes physical therapy notes in which there is typically a treasure trove of information that could help or hurt either side of the case. It also is advisable to peruse the transcripts of the depositions of the parties and witnesses completed in the case in order to be reminded of the overall tone of the case as you prepare to negotiate on behalf of your client at a mediation.

Perhaps one of the most important parts of preparing for a mediation is immersing oneself into the thought processes of opposing counsel in order to fully anticipate the arguments that opposing counsel will make to the mediator. What will opposing counsel’s arguments be on the liability issues? What will opposing counsel’s arguments be on the prior medical history or causation issues? What will opposing counsel argue relative to the type and extent of the injuries and economic damages alleged? Write down an outline of responses to each of these anticipated arguments so that you are prepared to quickly counter the anticipated arguments from the opposition.

Part of being fully prepared for a mediation should also include a conference with one’s own client or insurance company representative prior to the mediation in an effort to determine what expectations exist and, if necessary, to begin to temper or manage such expectations.

Fully preparing for the mediation will serve to avoid surprises for counsel or the client and may make the process move faster given that you will have all of the necessary information to negotiate at the forefront of your mind and at your fingertips.

Be Sure to Exchange Submissions With the Other Side


In addition to planning to draft a mediation memorandum that is concise and to the point, one should also plan to share that memorandum and the supporting exhibits with the other side. Nothing may further the chances for success at a mediation more than sharing one’s submissions with the other side and requesting that the information being exchanged be shared with the opposing party or the opposing insurance company in advance of the mediation.

It is always wise to draft a mediation memorandum that pointedly, but respectfully, emphasizes the weaknesses of your opponent’s case. Soften the harshness of the presentation of information that is detrimental to the other side by phrasing it in terms of the real world impact of that evidence by noting how a jury may react to that information when it comes out at trial.

To add to the credibility of your submissions, it may also be wise to suggest that you acknowledge and understand the issue with your own case while still attempting to minimize the importance of those difficulties.

The mediation memorandum should also outline the reasons that the opposing party should desire to have the case amicably resolved as opposed to litigated further or tried. Never hesitate to point out that a settlement will save time and expenses and will avoid the uncertainty of a jury verdict.

In terms of supporting exhibits, only provide the mediator with the most pertinent liability documents, photographs, medical records, and economic damages supports necessary to drive home the salient points of your case or defense. A documents dump of voluminous records will be frowned upon by the mediator and will only serve to increase the expenses of the mediation given the extra time it will take for the mediator to wade through the documentation. In this digital age of litigation, the symbolism attendant with a large binder of documents that a big binder equals a big case is no longer relevant.

An attorney’s credibility will be enhanced by that attorney taking the time to pinpoint the most relevant documentation to present to the mediator in advance of the mediation. Should there be additional, more detailed documentation you might wish to share with the mediator, you could always have that ready to show the mediator those documents at the mediation.

Also know and keep in mind that, given that the Rules of Civil Procedure pertaining to discovery are designed to provide for full disclosure and to prevent any surprises at trial, there will likely be no secrets on how you will likely present your case at trial by the time you get to a mediation. As such, there is really no reason not to share your mediation memorandum and supporting exhibits with the other side. As noted above, the sharing of your submissions with the other side will not only highlight to the other side the difficulties they may face with their case, but will also let the other side see and know that you are ready, willing, and able to go to bat for your own client at trial if it comes to that.

Certainly, if you are going to instead keep your mediation memorandum and exhibits confidential from the opposing side and only submit them to the mediator, be sure to give the other side the professional courtesy of a heads up in this regard before the other side submits their materials to the mediator. Otherwise, you could look petty, you may irk the opposing counsel and party, and you may cause the mediation to get off to a bad start by creating negative feelings which, in the end, could hurt or delay your client’s chances for a favorable outcome at the mediation.

Avoid Posturing for the Sake of Posturing


Posturing for the sake of posturing at a mediation is never advisable. Everyone involved in the proceedings can easily see posturing for what it is, i.e., the taking of a stance that bears no reasonable resemblance to a fair and practical evaluation of the case presented. The act of presenting an entirely unreasonable offer or demand at a mediation really serves no purpose and hurts the credibility of the attorney advancing such positions to the detriment of that attorney’s client or insurance carrier.

Knowing where your endgame may be in terms of a settlement figure, the better approach at a mediation is to make measured moves in the negotiations that signal a willingness to negotiate while still remaining firm on one’s belief as to the proper number for a settlement from the perspective of your client.

In the end, each side should work with the mediator in an effort to tap out the other side’s complete settlement authority and get to the number that perhaps no one is completely happy with but is more than content with to call it a day in order to avoid additional time-consuming and expensive litigation along with the uncertainty of a jury verdict.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation in these types of cases. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.


Reprinted with permission from the June 4, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Another Court Upholds The Validity of the Household Exclusion

In the case of Erie Insurance Exchange v. Kennedy, No. 10106 of 2024, C.A. (C.P. Lawr. Co. Jan. 27, 2025 Hodge, J.), the court granted a UIM carrier’s Motion for Judgment on the Pleadings and confirmed that a Plaintiff was barred from recovering UIM benefits under the subject policy based upon an application of the household exclusion. In so ruling, the court relied upon the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023).

According to the Opinion, two (2) individuals were killed in a motorcycle accident. The motorcycle was insured by Progressive Insurance. Progressive denied coverage for UIM benefits.

The decedents were also insured under a policy issued by Erie Insurance Exchange that had an exclusion for damages sustained by any insured who occupied a vehicle owned by the insured but which was not insured for UIM benefits under the Erie Insurance policy.

The court found that the facts of the case fell under the case of Erie Insurance Exchange v. Mione.

The trial court otherwise noted that the household vehicle exclusion is not enforceable if the insured is seeking to stack the UIM coverage in question with UIM proceeds from another policy in order to circumvent the household vehicle exclusion. Here, however, there was no stacking of UIM coverage involved in the case and the carrier was found to have properly denied UIM coverage under the household vehicle exclusion.

Anyone wishing to review a copy of this decision may click this LINK.

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 27, 2025).

Source of image:  Photo by Alex Dos Santos on www.pexels.com.

Case Dismissed Due To Lack of Timely Service of Process

In the case of Trinkle v. Herndon, No. 8078-CV-2023 (C.P. Monroe Co. March 25, 2025 Zulick, J.), the court sustained a Defendant’s Preliminary Objections regarding the Plaintiff’s failure to promptly serve a Writ of Summons in a motor vehicle accident case and thereby dismiss the case.

According to the Opinion, following the subject motor vehicle accident that occurred on December 3, 2021, the Plaintiff filed a lawsuit on December 4, 2023.

The Monroe County Sheriff issued an Affidavit of Return showing that no personal service was made on the Defendant at his/her last known address, which service was attempted on December 28, 2023.

There was then no further docket activity until May 8, 2024 when the Court ordered the Plaintiff to file for special service on or before August 6, 2024 because the docket did not reflect an affidavit of successful service of process.

On September 10, 2024, the Plaintiff’s attorney filed a Praecipe to Reissue the Writ of Summons. The Defendant was served thereafter on September 24, 2024.

The Plaintiff then filed a Complaint on January 14, 2025. The Defendant responded with Preliminary Objections seeking to dismiss the action due to the statute of limitations.

In his Opinion, Judge Zulick provided a detailed review of the law of the statute of limitations and the law regarding proper and prompt service of original process.

The Court noted that the Plaintiff had filed a Writ of Summons on the day that the statute of limitations were set to expire on the end of that day. Looking at the record before it, the Court found that date Plaintiff had failed to demonstrate that a good faith effort was made to complete service.

Plaintiff’s counsel pointed to the fact that he was out of the office for a period of time during 2024 due to medical issues and he also sited an error made by his office staff who thought that the Sheriff’s Affidavit filed on December 28, 2023 showed that service had been completed.

The Court noted that, despite these statements, the Plaintiff was put on notice by the Court’s Case Management Order of May 8, 2024 which specifically advised that service was not complete. That Order also directed the Plaintiff to complete service or file a Motion for Special Service by August 6, 2024. According to the Opinion, the Plaintiff did not comply with those Orders and, as such, the Court found that the Plaintiff failed to prove that the Plaintiff acted diligently in attempting to complete service on the Defendant with notice of the lawsuit.

Consequently, the Court ruled that the case must be dismissed due to the bar of the statute of limitations.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).

Source of image:  Photo by Pavel Danilyuk on www.pexels.com.

Summary Judgment Denied in Parking Lot Slip and Fall Case

In the case of Coolbaugh v. Sonesta Select Allentown Bethlehem Airport, No. 2023-C-1548 (C.P. Leh. Co. Nov. 13, 2024 Reichley, J.), the court denied a Defendant’s Motion for Summary Judgment in a case involving an alleged slip and fall in the Defendants’ parking lot.

In denying the motion, the court held that there were genuine issues of material fact regarding the application of the hills and ridges doctrine where a de-icing of the parking lot had occurred approximately twenty-four (24) hours before the Plaintiff’s accident.

According to the record before the court, there was evidence that the Plaintiff fell when temperatures were around freezing and where it had snowed three or four days earlier. The court noted that, where the evidence also indicated that the parking lot had been de-iced approximately twenty-four (24) hours before the Plaintiff’s accident, there was an issue of fact on whether the alleged accumulation of the ice upon which the Plaintiff had slipped was a natural accumulation or not.

Given these issues of fact, the court denied the Motion for Summary Judgment.

The court also denied the Motion for Summary Judgment on the basis of rejecting the Defendants’ argument that they had delegated the snow and ice removal duties to a third party under a contract. The court stated that the record was silent as to whether the moving Defendants had relinquished possession and control of the parking lot during or after the third party had performed snow removal services.

The court additionally noted that there were factual questions regarding the Defendants’ notice of the parking lot’s condition where snowy and ice conditions had been observed in the lot for days or weeks leading up to the Plaintiff’s accident.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

Source of image:  Photo by Wolfgang Lutzgendorf on www.pexels.com.

WARNING - NEW LAW - Put That Cell Phone Away While Driving or Face Getting Ticketed

While texting while driving has been banned in Pennsylvania since 2012, a new law that went into effect yesterday, June 5, 2025, bans all cell phone use while driving on the roads of Pennsylvania.

The law, known as “Paul Miller’s Law” (Senate Bill 37), makes it illegal to use a cell phone in your hands while driving. This includes holding your phone to do calls, emails, and texts. The law also prohibits having a cell phone in your hand for browsing the internet or for taking pictures or videos while you are driving.

The law prohibits these activities even when one is stopped at a red light or in a traffic jam.

Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of pushing buttons on the cell phone.

Under the law, for the first 12 months, the penalty will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. The violation carries no points against your license and it is not recorded on the driver’s record for noncommercial drivers. It will be recorded on a commercial driver’s record as a non-sanction violation.

Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.

Under certain exceptions noted in the law, a driver may use a cell phone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

Here is a LINK to the summary of the law on PennDOT's website.

LACKAWANNA PRO BONO'S GOLF TOURNAMENT IS THIS UPCOMING MONDAY -- PLEASE REGISTER OR SPONSOR

 

MEDIATION SUCCESS TIP FROM CUMMINS MEDIATION

 

 TIP TO IMPROVE CHANCES 

FOR SUCCESS AT MEDIATION:

DON'T DO A DOCUMENTS DUMP ON YOUR MEDIATOR

TAKE THE TIME TO SELECT THE PERTINENT DOCUMENTS THAT PRESENT THE VALUE OF YOUR CASE IN COMPELLING FASHION

Claims of Fraudulent and Negligent Misrepresentations Asserted Against Dentist Who Claimed Treatments Were Perfect Dismissed

In the case of Marcus v. Hazzouri, No. 2023-CV-5092 (C.P. Lacka. Co. May 27, 2025 Nealon, J.), the court sustained certain Preliminary Objections filed by a Defendant in a dental malpractice case.

According to the Opinion, the Plaintiff sued her former dentist alleging malpractice and lack of informed consent related to the alleged negligent installation of contra indicated mini-implants that later had to be removed and replaced with conventional implants.

The Plaintiff alleged that the dentist falsely stated that the mini-implants and his dental treatments were “perfect” and “going smoothly.” Based on these allegations, the Plaintiff additionally asserted claims of fraudulent and negligent misrepresentation, as a result of which misrepresentations the Plaintiff was reportedly unable to discovery her injury or the dentist’s negligence until she consulted with and treated with a different dental practice.

The Defendant dentist filed a demurrer to the fraudulent and negligent misrepresentation causes of action on the basis that those claims were duplicative of the Plaintiff’s malpractice claims and informed consent claims and were also unsupported by claims of separate damages.

The court granted the demurrer and noted that the only consequence alleged by the Plaintiff relative to the dentist’s representation involved the Plaintiff’s inability to discovery that the implants had failed due to the dentist’s conduct until the Plaintiff sought and received treatment from another dental group. Accordingly, the court ruled that the Plaintiff’s fraudulent and negligent misrepresentation claims were dismissed as legally insufficient due to the absence of any resultant damages.

However, the court noted that the statements allegedly made by the dentist would remain relevant to the matter in terms of any statute of limitations determination under the discovery rule and the fraudulent concealment doctrine.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Enis Yavuz on www.unsplash.com.

Trial Court Addresses Use of Hearsay Evidence During a Medical Malpractice Trial

In the case of Koesterer v. Thomas Jeffersons Univ. Hosp., Feb. Term 2021, No. 01051 (C.P. Phila. Co. Feb. 13, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in a medical malpractice case and held, in part, that a judgment in favor of the Plaintiff should be affirmed given that the medical malpractice Defendant did not suffer any prejudice to the point of warranting a new trial where the Plaintiff’s attorney was permitted to briefly cross-examine a Defendant physician with the expert opinions of the Plaintiff’s non-testifying expert in violation of the hearsay rule.

According to the Opinion, the Plaintiff sued the medical Defendants for professional liability after the Plaintiff’s mother died allegedly as a result of a pulmonary embolism after hip surgery.

At trial, the Plaintiff’s attorney was permitted, over the Defendants’ hearsay objection, to cross-examine a Defendant doctor and the Defendant doctor’s expert with the expert opinions issued by one of the Plaintiff’s non-testifying expert.

In this regard, the trial court pointed out that, immediately before the questioning at issue, the Defendant physician testified that there was a disagreement in the field of medicine regarding the issues raised in the non-testifying expert’s opinion.

Accordingly, the court stated that, while the questioning from the Plaintiff’s attorney briefly drew in an outside hearsay opinion from a non-testifying expert, the trial court found that it was impossible to conclude that the momentary reference would have had an significant impact on the jury’s decision. 

The court also noted that this was essentially the only reference to the opinions of the Plaintiff’s non-testifying expert at trial. Accordingly, in this Rule 1925 Opinion, the trial court asserted that it did not err or abuse its discretion in denying the medical Defendants’ request for a new trial based upon the alleged prejudice in this regard.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

ARTICLE (REPRINT): A Mid-Year Tuneup

As we are already at the mid-point of the year, I thought I would republish the below article of mine from the June 30, 2008  edition of the Pennsylvania Law Weekly:

A Mid-Year Tuneup
Ten tips to improve your practice and reduce stress

By

Daniel E. Cummins, Esquire
Pennsylvania Law Weekly
June 30, 2008

There is no better time of year than the month of June, when thoughts are beginning to turn to the salty air and sandy beaches at the shore or the cool breezes and lapping lakefronts in the mountains of Pennsylvania, to take a moment to rededicate oneself to the goal of improving one's practice while at the same time reducing any unnecessary stress. The following tips are suggested in this regard.

ANTICIPATE

By routinely looking ahead 30 to 45 days on the calendars, conflicts and deadlines will never creep up on you and cause unnecessary stress.

In terms of scheduling conflicts, looking ahead and clearing up problems is not only respectful of the schedule of opposing counsel, but can also serve to avoid delays and keep the case moving steadily towards its eventual resolution.

In terms of deadlines 30-60 days out on the horizon, it may be advisable to start the first draft of a brief or an arbitration/mediation memorandum whenever time permits. In that way, there will be time to put the brief aside to be researched, edited, and rewritten on a few additional occasions at your leisure as opposed to a last-minute dash to scrap together a superficial document that merely scratches the surface of the issues presented. By starting early on a written product, and revisiting it periodically with additional research and editorial touches, an attorney can guarantee his or her client a thoroughly advocated and a well-written presentation of the client's position to the court.

A MONTHLY GLANCE

Another way to stay on top of each and every file in your practice is to literally “glance” in the file once a month with a portable Dictaphone in hand. An easy way to remember to do this is to set yourself up to automatically complete this task either on the first day or the last day of every month.

While looking at each and every file during a single run-through once a month may sound like a daunting task at first, once you have looked at the file in this manner several months in a row, the status of file will become committed to memory and your review will move more quickly. In fact, by the third or fourth month of completing this monthly glance at the file, it will literally take only a few seconds to look at the correspondence section of each file to determine what has been done and what needs to be done in the file to keep it moving forward in an expeditious manner for the benefit of the client. Additionally, many files that are “hot” and on the front-burner to begin with, will need little or no review.

This method of regularly viewing the file allows the attorney to dictate quick letters to the opposing counsel or the client, or memos to the file, regarding the status of the case and items to be completed. Those letters and memos, in turn, will trigger the responses and further activity necessary to keep the file moving forward in a continual fashion.

A regular course of reviewing each file will also enable the handling attorney to impress others with the attorney's ability to discuss the status of the file off the top of his or her head during a cold telephone call from a client or opposing counsel. Last, but not least, this method of regularly reviewing files may also satisfy one's obligations to stay on top of one's files as may be required under the attorney's legal malpractice policy in any event.

Any thought that this type of a proactive, periodic review of files would be too time-consuming should be tempered with the acknowledgment that much more time is wasted by the reactive method of retrieving and digging through files only at times when updates or other action is required.

RETURN CALLS PROMPTLY

A common complaint of clients and attorneys is the failure of other attorneys to return phone calls promptly or at all. First and foremost, the failure to return a phone call, even from an adversary you can not stand to speak to, is just simply rude.

Obviously, a claim will become stagnant when phone calls seeking the information necessary to move the matter forward go unanswered. In terms of phone calls from clients, attorneys should remain mindful of the ethical duty to keep the clients informed as to the status of their case.

As hard as it may be to return a call to a vexatious adversary, one way to get over the reluctance to return the call is to realize that each communication with that person brings you one step closer to concluding the file and your dealings with that individual. If one simply can not stand any more contact with another individual than is necessary, then at least a response in writing should be offered.

Note also that the quick and consistent return of all phone calls will also serve to earn the attorney the favorable reputation as a courteous and responsive person who is motivated to move the file to its conclusion. One possible added benefit of returned phone calls to clients may also be that the client may call the attorney less as the client may feel updated on their case.

RESPOND TO MAIL

Another way to stay on top of matters and keep them moving is to respond to all mail, whenever possible, on the day it arrives. Immediately responding to mail on the day it arrives will keep the file moving forward in an expeditious manner and prevent matters from falling through the cracks.

Like returning phone calls, a prompt response to a letter is courteous to the sender and also signals that one has a common interest in moving the case towards a resolution.

READ UPDATES

Staying on top of the law will also enable a lawyer to stay one step ahead of opposing counsel. By remaining well-versed in the current status of the law, one will better serve the client and be less uncertain when engaging in legal arguments with opposing counsel.

Rather than passively skimming the case updates in Pennsylvania Law Weekly and the PBA Bar News , a better practice may be to actively committing the changes in the law to memory by typing up a running list of recent cases in one's computer. Another good source of new case law and citations is the blue-covered advance sheets for the Atlantic Second Reporters.

The computer list of saved case citations could be alphabetically broken down in to large topics like “Automobile Law,” “Civil Procedure,” “Dog Bite,” “Evidence,” and the like, with each section being broken down in to subparts in accordance with subheadings that may be found in the headnotes or descriptions stated in the case summaries.

It may also be advisable to read, or at the very least skim, the Pennsylvania Rules of Civil Procedure once a year. Not only does this practice refresh one's understanding of the Rules but it may also surprisingly result in new knowledge concerning certain aspects of civil procedure.

Remaining well-versed in the Rules of Civil Procedure and the changes in Pennsylvania case law may enable counsel to stay a step ahead of any opposing counsel and will foster a reputation of one being well-versed in the law and rules of procedure.

ARRIVE EARLY

Obviously it is always a good idea to be on time for any appointment or appearance as a matter of courtesy, as part of the effort to make a good first impression, and to avoid any unnecessary increasing of one's own stress level.

Arriving at least 15-20 minutes early for any meeting will allow for time to get set up and comfortable. By arriving early, one can have all their materials out and arranged on the table in an orderly fashion. This may serve to avoid the sometimes embarrassing situation of the need to scramble through the file in an effort to locate a particular item.

Arriving early will also enable the attorneys to deal with any preliminary issues. Agreements and stipulations can be reached or reaffirmed, thereby streamlining the proceedings.

Perhaps most importantly, by arriving early, an attorney may be less harried and, therefore, calmer going into the session. This will always prove beneficial, particularly if the attorney is in the presence of a client who will be reassured by the confident and composed presence of the attorney.

DON'T TAKE IT PERSONALLY

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal feelings or emotions, but rather should always be the result of a sound, objective business-like decision-making process.

All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. Sometimes it is a good idea to trash that hasty and curt first draft of a responsive letter so as to avoid a confirmation that the tone of the litigation will remain extremely adversarial.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value.

The pros and cons of a case can not be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings towards another attorney, that attorney's client, and/or that attorney's case or argument. Where it is difficult to separate one's self from an emotional assessment of the value of a case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

Last but not least, litigating attorneys should also never take on the emotional trappings of their clients or let such emotions get in the way of an objective application of the law to the facts of the case at hand. In addition to being advocates, attorneys are also expected to be counselors for their clients always at the ready to counsel them towards an amicable resolution of the issues presented.

VOLUNTEER

In addition to assisting clients with their legal matters, an attorney may also obtain personal gratification and improve the image of the practice as a whole by taking on pro bono cases within the scope of their expertise wherever possible.

Equally gratifying is the participation in volunteer activities in the community. In addition to benefiting local charities and communities, volunteer efforts also have the added benefit of networking and free advertisement. By participating in charitable activities, one can not only possibly gain some exposure with the general public but may also serve to improve public image of all attorneys.

SCHEDULE 'ME' TIME

It should also be kept in mind that lawyers are not just lawyers. They may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts, etc. An effort to be good in all aspects of life outside of the law results not only in a sense of accomplishment but also makes for a more fulfilling existence.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of burning out and losing touch with who else they are.

It is important to schedule so “me” time on a daily, or at the very least, several times a week basis. It is only common sense that attorneys who strive to expand their life outside of the practice of law, in terms of their hobbies, recreational activities, physical fitness, and in exploring creative outlets, are more apt to have a higher level of productivity at work as well.

It is also noted that engaging in some of the proactive tips noted above may provide the comfort the comes with knowing that one's files are updated and moving ahead so as to allow counsel to be more willing to let go of work issues and more fully enjoy one's free time.

VACATION

Similarly, when the above proactive tips for file monitoring and updating are utilized, one may be able to go away on vacation with the comfort and security of knowing that there is a lesser chance that a “fire” will arise that could serve to dampen one's enjoyment of the vacation or even cause the trip to be cut short.

Obviously, the practice of law can be an extremely stressful 24/7 profession. Spending and enjoying more time away from the practice and one's home base can serve as a release from the pressures of work and lessen one's overall stress level. This, in turn, could result in a healthier lifestyle. A more healthy lifestyle, in turn, may render one a more productive and efficient attorney. In the end, all aspects of life, both in and out of work, will benefit.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends outside of and away from work will add life to one's years during our short time on this planet. Again, it is only common sense that a well-rounded lifestyle that includes regular vacationing may also result in one becoming a more productive and effective attorney in the end.''

Daniel E. Cummins is a partner in the Clarks Summit, PA law firm of Cummins Law.  He additionally provides mediation services through Cummins Mediation.  He is also the sole creator and writer of the Tort Talk Blog found at www.TortTalk.com. 

Source of top image:  Photo by Matheus Bertelli on www.pexels.com.

Reprinted with permission from the July 26, 2024 edition of the Pennsylvania Law Weekly (c) 2024 ALM Global Properties, LLC.  All rights reserved.  Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.