Judgment in Favor of Carrier on Bad Faith Claim Affirmed

In the non-precedential decision of the Pennsylvania Superior Court in the case of Lewis v. Erie Insurance Exchange, 2115 EDA 2018 (Pa. Super. Aug. 21, 2019), the Court affirmed a trial court's dismissal of a bad faith claim relative to the purchase of automobile insurance coverage.

In one issue of note, the Superior Court affirmed the trial court's ruling that precluded the Plaintiff from utilizing an insurance agent as an expert at trial.

The Opinion is also notable for the Court's handling of the word limit Rule for appellate Briefs and confirms that the Court apparently does keep an eye out for violations of the same.

In this case where the Appellant raised 11 issues, the Pennsylvania Superior Court also turned to its oft-repeated advice for appellate litigants to only raise their strongest issues as "[a] brief that raises every colorable issue runs the risk of burying good arguments[.]  Lewis citing Com. v. Showers, 782 A.2d 1010, 1015-1016 (Pa. Super. 2001)[other citations omitted].

Anyone wishing to review this non-precedential decision may click this LINK.

I send thanks to Attorney Robert J. Cahall of the Wilmington, DE office of McCormick & Priore for bringing this case to my attention.

TORT TALK TIPS: Do Focused Edits

As Justice Louis Brandeis of the United States Supreme Court once said, "There is no great writing, only great rewriting."

Whether editing a letter, motion, or brief, or any writing for that matter, it pays to do more than one edit.

Do an initial edit of the whole document and then put the written product aside for a bit and come back to it with several focused edits.

Perhaps one focused edit would be to only review the headings and subheadings to see if they can be made better.

Another focused edit could focus on the citations only to make sure that they are in proper format and referencing the proper pages.

Another focused edit could focus on punctuation only, such as making sure that you have commas in the right place and a period at the end of every sentence

TORT TALK PRACTICE TIP

TRY TO BE MORE SPECIFIC IN YOUR WRITING

Whenever possible try to be specific in your writing.  Being more specific brings clarity to your writing.

When describing people in your briefs or letters, it helps the reader to follow your train of thought when you use a person's name regularly in conjunction with repeated references to them as "the Plaintiff" or "the Defendant," as opposed to pronouns such as he, she, his, or her, etc.

For example, rather than saying "the injured party," periodically refer to "the Plaintiff, John Smith."  Instead of repeating a general reference to "the tortfeasor," or "the liable party," refer to the "Defendant, Jane Jones" or if there is only one defendant, simply reference "the Defendant."

In appellate briefs, an argument may be easier to follow if "Plaintiff" or "Defendant" is used as opposed to "Appellant" or "Appellee."  Some recommend that "Appellant" or "Appellee" never be used.  The use of "Appellant" or "Appellee" disrupts the flow of the reader's reading of the brief as they may have to look back up earlier in the brief for a reminder as to which party filed the appeal at issue.

During one of your multiple edits of a brief or letter, it may pay to focus one of those edits on skimming through the written product to specifically look for pronouns and asking if that sentence can be made more clear by the insertion of a more specific identification of a person in the place of a she, he, his, or her designation.

Being more specific in your writing will foster clarity in your letters and briefs and will enable your audience to easily understand your summary or argument.

Writing Tips

I came across the below good tips for writing and, finding them amusing, thought I would share them with you here on Tort Talk:

TORT TALK PRACTICE TIP

Use Conclusion Section Of a Brief for More than a Conclusion

Some attorneys may have a ­misconception that the Conclusion section of a brief can only be utilized for a one-line statement of the relief requested, i.e., "For the above-stated reasons, it is respectfully requested that the plaintiff's motion to for summary judgment be granted."

The very last sentence of the entire brief should certainly be a respectful request for the granting of the relief requested.  However, there is no rule stating that one is precluded from utilizing the Conclusion of a brief as one last great opportunity to encapsulate your client's legal argument in an additional sentence or two or three.

An excellent way to accomplish is to recast your "Question Presented" as a strong final statement that the relief requested should be allowed by the court.

TORT TALK PRACTICE TIP

BE CONVERSATIONAL IN YOUR BRIEF WRITING

Legal writing courses in law school wrongfully kill creativity in brief writing in favor of arid, brittle, crisp statements of the law as applied to colorless adjective-free facts. The result is lifeless law review writing, and who seeks out law review articles to read after they are written? No one.

So be conversational in your writing and bring the story of your case to life within your argument with descriptive and carefully chosen words and concise sentences. Let your recitation of the facts flow as if you are relaying the story of the case to a friend in a conversation. Leave out slang words, but don't be overly formal either. Use your natural speaking voice in your writing.

Being conversational includes being polite. Know your place and never tell a judge that he or she "shall" or "must" accept your position. Rather, soften such statements by instead writing that "it is respectfully submitted" that the rule of law supports the result requested.

TORT TALK PRACTICE TIP

TAKE PRIDE IN YOUR WRITING

Good legal writers take pride in their writing, care about their end product, and desire that the position put forth in the writing be accepted.   If the writer lacks any of these feelings about the written task before them, it will surely be evidenced in the writing.

In other words, if you don’t care about your written product, why should anyone else care to read it.

So break out that red pen and edit your writings and then re-edit them.  Then re-edit.  

Taking pride in your written submissions will naturally result in a better letter, or a more compelling brief that is free from errors and cohesive in presentation.  

Taking pride in your writing might even be the difference between winning or losing on the issue presented.
 

TORT TALK PRACTICE TIP

BE REDUNDANT IN STATING YOUR LEGAL POSITION IN BRIEFS

While redundancy in particular word use is to be avoided in brief writing, every effort should be made to repeatedly state the validity of your legal ­position supporting the relief requested.

The first and last sentence of each ­subsection of your brief should contain the legal conclusion that supports your ­client's position. 

Brief writers will often start with a statement of the applicable rule of law but never fully apply the facts of the matter to that law. Or they will apply the facts to the law but not write that next, most important, concluding sentence tying it all together by stating that the law supports the client's position such that the ­relief requested should be granted.

So be sure to end each section of the brief with a sentence set forth in an active voice stating that this part of your legal argument should be accepted as valid by the court under the law provided. 

Repeatedly end each section of the brief with a respectful statement that the motion at issue should therefore be granted or denied, whatever the case may be.

TORT TALK PRACTICE TIP

WRITE SIMPLY

Good legal writing requires short paragraphs made up of short sentences. 

To shorten sentences, delete extraneous words.  But don’t delete all descriptive words such that your brief becomes a dry, choppy document devoid of feeling or persuasive effect.

Another way to shorten sentences is to ask yourself if that comma in the middle of that long sentence can be replaced with a period.  Usually it can and the reader will benefit from not having to wade through and re-read a run-on sentence to understand the multiple points contained therein.

To shorten paragraphs, make sure you have a good topic sentence and that all following sentences stay within that topic.  If more than one topic is discussed in the paragraph break it down into separate paragraphs.  When you do so, however, remember to make sure there is a good transition sentence at the end of the paragraph in order to create a good flow through all of the paragraphs that builds like a crescendo towards the desired result.

Another good form to utilize persuasive headings and sub-headings to guide the reader through your brief to the desired destination, i.e., the acceptance of your position.

            

TORT TALK PRACTICE TIPS

THE QUESTION PRESENTED IN YOUR BRIEF COUNTS

A lot of attorneys glaze over the "Question Presented" section of a brief and, in doing so, miss an opportunity for the court to read their client's argument as set forth in a concise and forceful format that foreshadows the conclusion desired.

It is a waste to simply state in the "Question Presented" that the motion at issue should be granted or denied.

Always begin your "Question Presented" with a phrasing that suggests your position should carry the day. For example, for the movant, the "Question Presented" should be positively phrased as, "Whether the motion of the defendant, John Smith, to compel should be granted where..." and vice versa for the non-moving party.

Then, as concisely as possible, include in the "Question Presented" the pertinent facts of your case as applied to the rule of law in a manner that favors your position. 

In the end, the "Question Presented" should be a detailed statement of your legal position in a question format that suggestively asks whether your position should be accepted by the court. 

Also, take the language in your "Question Presented" and mirror it in the Conclusion section of your brief as very similar, but not identical, restatement of your ­client's position.  In other words, copy your Question Presented into your Conclusion section but change it from a question to a statement in favor of your position and polish it off with a specific statement of the relief requested.

ARTICLE: Brief Rewriting Tips for the Young (or Any) Lawyer

The below article of mine appeared in last week's March 17, 2016 edition of the Legal Intelligencer and is reprinted here with permission.  All rights reserved.

Brief Rewriting Tips for the Young (or Any) Lawyer

by

Daniel E. Cummins, Esquire

The Legal Intelligencer

March 17, 2016

The use of simple words, short ­sentences, and narrow paragraphs will render your work product clear and concise. Pointed sentences composed of tight words will keep a grasp on the reader, allowing their minds to flow continuously through your written argument in a focused fashion.

A long sentence that goes on and on and moves from idea to idea with words and notions will surely lose the reader at midpoint and make that reader then have to go back and re-read the sentence more than once in order to understand what is being conveyed, thereby puzzling the reader and possibly making him or her lose interest in reading the rest of what you have written because the reader has forgotten what point the sentence is attempting to convey in the first place about long sentences. See?

Whenever possible, sentences should ­instead be limited to the conveyance of one idea. Where two or more ideas are put forth in a single sentence, see if that sentence can be broken into two.

With paragraphs, every attempt should be made to keep your paragraphs limited to one main idea. This main idea of the paragraph should be emphasized in a topic sentence written in an active voice, (i.e., place the subject before the verb).

Also, keeping paragraphs to five ­sentences or less will also make your brief more pleasing to the reader's eye. Readers coming to a page in your brief that has words broken down into only two paragraphs are likely going to sigh before attempting to wade through such verbosity.

And remember, there is no rule against utilizing a one-sentence paragraph to ­emphasize an important point.

Avoid Redundant Use of Words

The redundant use of the same words can be annoying to a reader. Wherever possible, seek out and utilize a synonym of the repeated word, first making sure that the meaning of the alternate word is appropriate.

The exception to this rule in brief-writing is that the terms "plaintiff" and "defendant" should be repeatedly used so as to keep clear to whom the writer is referring in any given sentence. These terms should even be used on appeal in the place of "appellant" or "appellee" for clarity's sake.

In fact, Pennsylvania Rule of Appellate Procedure 2131 cautions the appellate brief writer to keep the use of the terms "appellant" and "appellee" to a minimum. When using such terms, perhaps the clearer way would be to utilize "appellant-defendant" the first time that party is identified and then sticking with "defendant" throughout the remainder of the brief.

Be Redundant in Your Position

While redundancy in word use is to be avoided, every effort should be made to repeatedly state the validity of your legal ­position supporting the relief requested.

The first and last sentence of each ­subsection of your brief should contain the legal conclusion that supports your ­client's position. Brief writers will often start with a statement of the applicable rule of law but never fully apply the facts of the matter to that law. Or they will apply the facts to the law but not write that next, most important, concluding sentence tying it all together by stating that the law supports the client's position such that the ­relief requested should be granted.

So be sure to end each section of the brief with a sentence set forth in an active voice stating that this part of your legal argument should be accepted as valid by the court under the law provided. Repeatedly end each section of the brief with a statement that the motion at issue should therefore be granted or denied, whatever the case may be.

Be Conversational

Legal writing courses in law school wrongfully kill creativity in brief writing in favor of arid, brittle, crisp statements of the law as applied to colorless adjective-free facts. The result is lifeless law review writing, and who seeks out law review articles to read after they are written? No one.

So be conversational in your writing and bring the story of your case to life within your argument with descriptive but concise words and sentences. Let your recitation of the facts flow as if you are relaying the story of the case to a friend. Leave out slang words, but don't be overly formal either. Use your natural speaking language in your writing.

Robert Frost has been quoted as writing or saying, "No tears in the writer, no tears in the reader. No surprise in the writer, no surprise in the reader."

Similarly, if there is no feeling conveyed in the writing of the brief in the form of colorfully vigorous and compelling statements that the law and facts in support of the ­position of your client, then there is going to be no similar feeling born in the reader.

Being conversational includes being polite. Know your place and never tell a judge that he or she "shall" or "must" accept your position. Rather, soften such statements by instead writing that "it is respectfully submitted" that the rule of law requires or mandates the result requested.

Question Presented

A lot of attorneys glaze over the "Question Presented" section of a brief and, in doing so, miss another opportunity for the court to read their client's argument as set forth in a concise and forceful format that foreshadows the conclusion desired.

It is a waste to simply state in the "Question Presented" that the motion at issue should be granted or denied.

Always begin your "Question Presented" with a phrasing that suggests your position should carry the day. For example, for the movant, the "Question Presented" should be positively phrased as, "Whether the motion of the defendant, John Smith, to compel should be granted where..." and vice versa.

Then, as concisely as possible, include in the "Question Presented" the pertinent facts of your case as applied to the rule of law in a manner that favors your position. In the end, the "Question Presented" should be a detailed statement of your legal position in a question format that asks whether your position should be accepted by the court. As noted below, the language in your "Question Presented" and conclusion sections should mirror one another as concise, but not identical, affirmations of your ­client's position.

Cite the Law

Whenever you cite a legal principle of law, lend it credence by adding a citation to a case rule or statute after the end of the sentence. Without citations, your stated legal principles will appear to be your philosophy of the law and the reader knows that you are no philosopher of the law.

Lawyers are trained to cite everything. Judges are lawyers. For lawyers, a citation is like whipped cream on an ice cream sundae—you don't really take notice of it when it is there, but you sure do know and protest when it is missing.

The absence of a citation for a stated position raises a belief in the reader that there must be no citations supporting the position taken or that the lawyer was too lazy to look one up. Either way, the instantaneous conclusion of the reader is that they should therefore not accept the argument put forth as valid or worth consideration. Avoid this by listing citations wherever possible.

Although not required, it may be a good idea to identify in the citation the judge who wrote the decision cited. Judges know each other from traveling in the same circles and an opinion written by one judge may carry weight with your judge.

Use Conclusion Section for More than a Conclusion

Some attorneys may have a ­misperception that the final conclusion section of a brief can only be utilized for a one-line statement of the relief requested, i.e., "For the above-stated reasons, it is respectfully requested that the plaintiff's motion to for summary judgment be granted."

Surely the last sentence of the brief should be a respectful request for the granting of the relief requested, but there is no rule stating that one is precluded from utilizing the conclusion of a brief as one last great opportunity to encapsulate your client's legal argument. An excellent way to accomplish is to recast your "Question Presented" as a strong final statement that the relief requested should be allowed by the court.

Focused Edits

One can become sick of looking at a written product after a few edits and thereby lose focus. One way to counter this ­phenomenon is to conduct focused edits of the document.

Do a focused edit of only looking at the citations for proper format and punctuation. Do an edit focused on keeping sentences short and tight. Do another edit focused only on making sure you have good transitions from one paragraph to the next and from one section of the brief to the next. Another edit of your brief can be completed with an eye centered on ensuring that each section of your brief begins and ends with a concise statement of the legal relief requested.

At another run-through, start by editing a section near the end of the brief and then going back to the beginning in order to have fresh eyes on the latter sections of a lengthy brief.

It can be safely said that no great brief was ever written on a first draft. And so as you work on crafting the best-written product you can produce to which your paying client is entitled, keep in mind the words of former U.S. Supreme Court Justice Louis Brandeis: "There is no great writing, only great rewriting."

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

"Remember the Days When We Had To..."

By virtue of an amendment to the relevant Rules handed down by the Pennsylvania Supreme Court, the ridiculous and time-consuming requirement of finding and including useless parallel citations to the Pennsylvania State Reporters in briefs filed in the appellate courts has been eradicated.

Hallelujah!  What a welcome change.

See the Rule change HERE.

I send thanks to Attorney Jim Beck of the Philadelphia law firm of Reed Smith and the writer of the award-winning DRUG AND DEVICE LAW BLOG for this excellent tip!

Excellent Legal Writing Tips

Here's a link to a post on a blog called "The Lawyerist" which provides an itemized list of excellent tips to help improve legal writing as provided by noted expert Bryan Garner: http://www.linkedin.com/news?viewArticle=&articleID=124108622&gid=63909&articleURL=http%3A%2F%2Flawyerist.com%2F10-legal-writing-tips-from-bryan-garner%2F&urlhash=1NYD&trk=news_discuss

I also highly recommend Garner's book with Justice Scalia called Making Your Case: The Art of Persuading Judges. This book not only provides writing tips but also oral argument tips.

Like A Light Bulb Over My Head

I recently had an enlightening moment, almost like when a light bulb pops on over a character's head in a cartoon, while reading the attorney "self-help" book I had recently received as a gift, Making Your Case: The Art of Persuading Judges by Supreme Court Justice Antonin Scalia and legal writing expert Bryan A. Garner. This book offers great tips to improve your brief writing and oral argument presentation skills and I highly recommend it.

One of quite a few enlightening moments that occurred while reading this book revolved around a lesson in writing the Question Presented section of a brief. I, like most lawyers, had been trained to write the question presented by a case in a single, often run-on sentence, which as the authors noted often turns into "a muddle" which causes the reader to "forget the question by the time we reach the question mark."

Justice Scalia and Mr. Garner note that instead of a Question Presented like this:

Whether there was a violation of the OSHA rule requiring every incident-investigation report to contain a list of factors that contributed to the incident, when the investigation report on the June 2002 explosion at the Vespante plant listed the contributing factors in an attachment to the report entitled "Contributing Factors," as opposed to including them in the body of the report?


The authors note that a better way to present the question would be to break the issue down into sentences like this:

OSHA rules require every incident-investigation report to contain a list of factors that contributed to the incident. The report on the June 2002 explosion at the Vespante plant listed the contributing factors not in the body of the report but in an attachment entitled "Contributing Factors." Did the report thereby violate OSHA rules?


In the above example instead of one 62-word sentence, you have three sentences averaging just 18 words. The information is presented in a clear and tight manner such that even readers unfamiliar with this area of law can easily understand the issue raised by the case.

Concisely, with regards to writing this section of a brief, the authors assert that the better strategy is indeed to break up the question presented into separate sentences that all total no more than 75 words or so at the most. The first couple of sentences or so should be designed to follow a chronological order telling the story in miniature fashion, followed by the pointed question that emerges from that story.

Perhaps a way to ease yourself into this new way of writing the issue presented may be to continue, at least initially, to write out the question the old-fashioned run-on sentence way and then go back and edit down to two to three sentences followed by the pointed question.

I think this new format of the Question Presented is excellent advice and I note that, if it's not only acceptable to, but highly recommended by, Justice Scalia, I would hope that the writing of issues presented in this fashion would be well-received and appreciated by Judges reading our briefs.