ARTICLE: TAKE ME OUT TO THE BALLGAME: Little League Tips for Big League Lawyers

As we get ready for baseball's All-Star game tonight, here's an article of mine that appeared in the May 25, 2010 edition of the Pennsylvania Law Weekly. 

Take Me Out to the Ballgame
Little League tips for big league lawyers

By
Daniel E. Cummins
Pennsylvania Law Weekly/The Legal Intelligencer
May 25, 2010


It's that time of year again — Little League baseball is starting up for boys and girls.

The smell of hotdogs and Cracker Jacks permeates the air, while spent sunflower seed shells crunch underfoot on the dusty floor of the dugout.

For kids, it's a time for new uniforms, cleats and friends. For parents, on the other hand, it can be a time for more laundry, over-the-top coaches hellbent on winning and some equally overbearing fellow parents. As Yogi Berra said, "Little League baseball is a very good thing because it keeps the parents off the streets."

In any event, it's a time for great memories.

During one "quick" two-and-a-half hour long Little League baseball game, it became clear that a lot of the coaching shouted by the managers and others could also be applied to improve one's game in the practice of law.

'Let's Warm Up and Stretch'

Warming up and stretching in baseball prevents injuries. Doing the same before any court appearances may prevent damage to the client's case.

Whether it be the simplest of oral arguments on a slam dunk motion to compel, a direct examination, a cross-examination or an opening statement or a closing argument, all can benefit from a warm up by, at the very least, outlining the presentation on paper.

The more involved court presentations can be improved by a practice run-through in front of another person.

Like pre-game calisthenics or drills, going over such important presentations out loud, in a repetitive fashion, can assist one in committing the same to memory and tweaking it where necessary.

Even better, taking a lap with the presentation in front of another attorney or a lay person can result in tips on ways to improve upon the questioning of a witness or an address to the jury.

'Keep Your Eye on the Ball'

It is said that one of the hardest things to do in all of sports is to hit a pitched baseball. In fact, the "Splendid Splinter," Ted Williams, one of baseball's greatest hitters, said, "The hardest thing to do in baseball is to hit a round baseball with a round bat, squarely."

Analogously, one of the hardest things to do in the practice of law is to keep your eye on the ball when an opposing counsel is throwing all kinds of purposefully distracting maneuvers your way.

The best way to stay focused in this regard is to not take matters personally and to not stoop to the opponent's level in angry retaliation.

Wherever possible, ignore the shenanigans being put forth by opposing counsel and stay the course on your theory of the case. Keep your eye on the ball. Your client will be better off for it.

'Hustle!'

Everyone's always required to run in baseball. The coaches are always shouting, "Hustle," "Move," "Chase it down," "Run it out," "Run it in!"

Hustling in the practice of law includes quickly answering correspondence, promptly responding to discovery and motions, and staying ahead of opposing counsel's tactics. This will allow one's case to move in a quicker and smoother fashion, hopefully toward the desired result.

The key is to honor your client's case by continually hustling and not loafing, all the way to the conclusion of the matter. As Yogi Berra said, "The game isn't over until it's over."

'Eddie! Run to First Base ... Not Third!'

Learning the fundamentals and the rules of the game in T-ball lays the foundation for a good ballplayer later.

Former St. Louis Cardinals manager Whitey Herzog advised: "Fundamentals are the most valuable tools a player can possess. Bunt the ball into the ground. Hit the cutoff man. Take the extra base. Learn the fundamentals."

The same applies in the practice of law, which is founded on rules and fundamental concepts.
As such, in addition to staying on top of new caselaw, a quick read-through of the Pennsylvania Rules of Civil Procedure on a periodic basis, even once a year, is recommended. This will not only refresh your memory of certain rules, and loopholes, but you may also surprise yourself by learning something new.

'Keep Your Butt Down!'

Perhaps nothing irks a coach more than seeing a ground ball go through the legs of an infielder who failed to get his butt down and his glove in the grass.

Something that falls through the cracks in the practice of law may unfortunately bring you much more trouble than an exasperated sigh and a big roll of the eyes from a coach.

To prevent such problems, it helps to regularly look ahead on the calendar, not only to the next week, but over the next 30 days to be reminded as to what's coming up. If the time permits, start a draft of that brief now that's due 30 days out.

It would also be beneficial to stay on top of the mail and phone calls by attempting, whenever possible, to return such communications on the spot and certainly no later than 24 hours after receipt. Once incoming letters and phone calls get older than 24 hours they are more likely to be forgotten, especially with the onslaught of more letters and phone calls received by a fortunately busy attorney.

Staying on top of the calendar and these communications will prevent things from going through the wickets and will make it less likely that you will be charged with an error.

'Cover All the Bases!'

A good baseball coach teaches his players to cover all of the bases on any hit ball.

If the coaching is good, the players are trained so that the first baseman covers first, the second baseman or shortstop go to the bag at second and the third baseman covers third at the crack of the bat. Although such coverage of the bases is usually wasted energy, there is always the potential that this maneuver will come in handy and may even secure an out or save a victory for the team.

Therein lies the pressure of the practice of law — the need to cover all of the bases all of the time. In addition to staying on top of incoming communications as noted above, another way to cover all the bases is to stay on top of the law.

New developments in the law can be committed to memory not only by reading updates but by actively typing case summaries and citations to a running list on a file on your computer.

Whether it be by reading the case digest section of the Pennsylvania Law Weekly, the blue advance sheets of the Atlantic Second Report, or other sources of updates, knowing the latest cases in your field of practice will always keep you ahead of the competition.

'You Never Argue With the Umpire!'

While it may have been socially acceptable in 1977 for Billy Martin to kick dirt all over an umpire's shoes and for Tommy Lasorda to get in an ump's face and say things like "%#@&*!%#@&*%," such is not the norm any more in baseball.

Nor is it in the practice of law, although the legal drama shows on TV these days may continually tempt young lawyers into believing it is acceptable to be flippant and disrespectful toward judges.

Candor, respect, and deference remain the rule in the courtroom and should be honored at all times.

So as much as you may want to go all Earl Weaver on a judge and his or her decision (which is probably the correct decision anyway), it's probably best to leave things unsaid or take it up on appeal.

'You'll Get 'Em Next Time.'

In baseball, failure is not the end of the world — it's expected. Strikeouts and errors happen all the time. Mediocre catcher and great baseball announcer, Bob Uecker, once proudly stated, "I led the league in 'Go get 'em next time.'"

The key in Little League to keeping young ballplayers coming back for more, despite errors or strikeouts, is repeated encouragement.

Noting that perfection is not the goal in baseball, Ted Williams stated, "Baseball is the only field of endeavor where a man can succeed three times out of 10 and be considered a good performer."

While attorneys should strive for better than a .300 average in terms of successes, a lawyer obviously can't win every motion or every case. But what counsel can do is keep their head up, learn from the losses, and move forward in search for a better result the next time around. To quote Babe Ruth, one of baseball's all-time greatest homerun hitters, "Don't let the fear of striking out hold you back."

'Line Up to Shake Hands!'

Last but not least, don't forget to line up at the end of every "game," whether you win or lose, to shake hands with your opponent and say, 'Good game.'

And so while you're out there in the game of law, enjoy it while you're in it, for as the great baseball announcer Vin Scully once said, "It's a mere moment in a man's life between the All-Star game and the Old-Timer's game."

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.

Source of image:  Photo by Mick Haupt from www.unsplash.com.

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.

In Honor of Lincoln's Birthday

In honor of President Abraham Lincoln's birthday, I provide this reprint of an article of mine that appeared in the Pennsylvania Law Weekly a few years back:

LINCOLN LOGS OF WISDOM

A Presidents' Day review of practical advice from one of our greatest lawyer-presidents

By Daniel E. Cummins
Special to the Law Weekly

January 29, 2007

On President's Day – Feb. [15th] this year – we will honor the memory and accomplishments of one of our greatest presidents, Abraham Lincoln. While the myth and legend of this great president has expanded through history, it cannot be forgotten that he began his career as a country lawyer in Illinois.

Over the course of his career as an attorney and during his rise as a politician, Lincoln was famous for his wit and simple, yet compelling, way with words. He uttered many famous quotes, some of which are noted below, that can serve as excellent advice even for today's lawyers practicing nearly 150 years after his untimely death.

Whatever you are, be a good one.

Despite the current negative public perception of lawyers, the practice of law remains one of the noblest of professions. Continuing efforts of all attorneys to do the best they can for their clients and their community not only results in personal fulfillment but also advances the profession as a whole.

Good lawyers are not only strong advocates on behalf of their individual clients but may also serve as pillars of the community through volunteer work and pro bono work. Striving to volunteer one's time in this respect to the community is not only a part of being a good lawyer but also serves to foster a positive view of the profession as a whole.

It should also be kept in mind that we are not just lawyers. We may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts. An effort to be good in all aspects of life results not only in a sense of accomplishment but also makes for a more fulfilling existence. So the next time you find a heads up penny, in addition to the prospect of good luck, think, "Whatever you are, be a good one."

Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.

As lawyers, our reputations precede us. Having a character made up of integrity, honesty, or punctuality may cast a shadow just as long and deep as the negative shadow cast by one having an opposite character that is exhibited through a lack of integrity or through dilatory and vexatious conduct. There can be no question that one's reputation will set the stage as to how they are dealt with and viewed by others.

In picking up new files and before dealing with an opponent, one's first thought usually turns to the reputation of that other attorney. Many times, if the reputation is not known, it will be sought out by inquiring of others or doing other research in an effort to prepare for handling a file with that opposing counsel. Similarly, in dealings with judges, the "shadow" created by an attorney's reputation will reach the courtroom long before the attorney even stands before the bench on the issue presented.

It is often said that a lawyer's word is his bond. This is more than a cliché, it is a principle, a truth, and should be honored as such. Thoroughness in preparation and presentation along with punctuality and courteousness are also important aspects of creating a positive reputation. Adherence to these qualities will only enhance one's reputation within the bar and allow for better representation of the client.

Accordingly, it is important to constantly remember that every action may help to expand, or alter, our reputations. Consistent with Lincoln's analogy, when a tree is chopped down, it leaves little or no shadow. As hard as it is to develop a strong, favorable reputation, all it takes is one misstep to diminish, or even totally destroy, that reputation.

Give me six hours to chop down a tree and I will spend the first four sharpening the axe.

There is no better lawyer than a fully prepared lawyer. Judges and fellow counsel appreciate nothing more than the prepared lawyer who can streamline and thoroughly, yet concisely, present the client's position. Clients are better served by lawyers who take the time to become fully acquainted with the facts, the law, and the rules of civil procedure before completing whatever legal task lies ahead.

Whether it be the simple presentation of a discovery motion or the participation in a lengthy trial, the more time spent in preparation, the better the finished product will be. Additionally, developing a reputation as a well-prepared attorney will earn you the respect of your colleagues, may add to your credibility and will consequently strengthen whatever position you are advocating on behalf of your client.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

Being in a profession that is adversarial by nature, we often approach issues with a fight in mind as opposed to efforts to reach an amicable resolution. With these words, Lincoln stressed that the role of a lawyer as a counselor is just as important, if not more important, than his or her role as a litigator.

Part of being a good lawyer is persuading clients to put emotions aside. Compromise is much more difficult when egos are involved and when attorneys take on emotional trappings of the client. Efforts at an objective evaluation of the pros and cons of any position will always serve the goal of reaching an amicable resolution of any dispute.

It is also often said that the sign of a good settlement or resolution is that both parties are not entirely happy with the result but the case is still nevertheless finally resolved. As Lincoln stressed, there is plenty of business to go around as we move from one file to the next and so litigation should not be sought out simply for the sake of litigation.

Am I not destroying my enemies when I make friends of them?

Similar to Michael Corleone's later advice in The Godfather, Part II, "Keep your friends close, but your enemies closer," Lincoln long ago recommended similar action to defuse one's opponents. Lincoln's advice goes a step further and advocates reaching out to one's enemies in an effort to appease them. Lincoln followed this advice when he famously filled his Cabinet seats with his political enemies. By doing so, he kept such enemies close and neutralized them by honoring them with prestigious positions of importance within the control of his administration.

In today's practice of law, we are routinely faced with adversarial attorneys we much rather not have to deal with. As difficult as it may be, perhaps it is better method of handling all adversaries by not retaliating in frustration but, wherever possible, greeting such opponents with appeasement or consideration.

Regardless of the shoddy treatment you may be receiving from an adversary, respond as you would wish to be treated. Routinely grant extensions or continuances when requested so long as it is not to the detriment of your client. Voluntarily disclose discovery that such opponents may be entitled to without the necessity of formal discovery requests or motions practice. Promptly return phone calls.

By acting in a non-confrontational manner towards vexatious opponents, it becomes more and more difficult for such adversaries to continue to respond or litigate in a negative fashion. Additionally, if certain issues eventually come to a head and require court intervention, the court would look more favorably upon your efforts towards an amicable resolution of the issue when compared to the petty and negative conduct of your opponent.

Better to remain silent and be thought a fool than to speak out and remove all doubt.

At CLE seminars, we often hear judges on the panel spend their presentations expressing the virtues of brevity and giving examples of less than exemplary arguments or presentations presented by attorneys in court.

Overburdened judges and bored jurors appreciate concise arguments grounded in common sense and ideals of fairness. The old school of thought of reiterating your argument three times in an effort to engrain your position upon the minds of the jurors no longer seems valid in this day and age of the rapid fire receipt and retention of information. Jurors, who are much more intelligent than they are usually given credit for, may become frustrated and develop a negative view towards you and, consequently, your client if you bore them with an unnecessarily repetitive presentation.

Being brief and concise can go a long way in having an impact and leaving a lasting impression upon others. No better example of this can be cited than Lincoln's own brief, concise, yet powerful, Gettysburg Address. Lincoln used less than 300 words delivered in just over two minutes in what has become known as one of the most compelling speeches in American history.

And in the end it's not the years in your life that count. It's the life in your years.

Despite being overburdened with attempting to reunite a country divided by civil war and bloodshed, Lincoln remained close to his wife, doted on his children, and otherwise attempted to live his life to the fullest.

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. A balance between work and life outside of work should be sought and encouraged. Focusing one's energy entirely on work may cause one to burn out or become disillusioned with the practice. It will also likely result in significant regret at the end of one's life when looking back at all the missed opportunities to enjoy life outside of work with our family and our friends.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends, enjoying recreational activities or hobbies, or by developing whatever your potential may be will only serve to add life to your years. Such a well-rounded lifestyle may also result in one becoming a more productive and effective attorney.

President Abraham Lincoln has been rightfully revered as a great orator and a figure who personifies honesty, integrity, and freedom. What better way is there to honor his memory than by recalling the above-noted ideals he pursued and attempting to incorporate them into our everyday lives in a continuing effort to improve the world around us. In this regard, as stressed by Lincoln himself, "Leave nothing for tomorrow which can be done today." •

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@cumminslaw.net.

This article is reprinted here, with permission, from the January 29, 2007 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC and/or ALM Global Properties. Further duplication without permission is prohibited. All rights reserved. Please contact 877-256-2472 or asset-and-logo-licensing@alm.com for permission to reprint or duplicate this article.

ARTICLE (REPRINT): A MID-YEAR TUNEUP

 As we already rounding 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. 

ARTICLE: A St. Patrick's Day Parade of Proverbs

 Here's a "replay" of a previous article of mine in the spirit of St. Patrick's Day:

A St. PATRICK’S DAY PARADE OF PROVERBSby

Daniel E. Cummins
Pennsylvania Law Weekly
March 10, 2008

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”


A closed mouth—a wise head.


Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.


A good beginning is half the work.


Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.


If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.


Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”


Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless.


An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.


If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.


Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.


If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”


A light heart lives long.


As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.


Daniel E. Cummins, Esquire is a partner with the Clarks Summit, Pennsylvania civil litigation firm of Cummins Law. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern and Central Pennsylvania.




This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Source of image:  Photo by Amy Shvets on www.pexels.com.

An Oldie But Goodie - ARTICLE: Spread a Little Love

 In honor of Valentine's Day, I figured I would re-run the below article of mine that previously appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly(c) 2009 Incisive Media US Properties, LLC (now known as American Law Media) as well as here on Tort Talk:

Spread A Little Love:
Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly
DanCummins@CumminsLaw.net

The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.

With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff
Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls
It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others
See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.

Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology
Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.

Smile
In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies
Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse
Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself
Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •

Source of image:  Photo by Rodnae from www.pexels.com.

Daniel E. Cummins is a partner and civil litigator with the Clarks Summit, PA law firm of Cummins Law.  Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.  

Cummins is also available to serve as a Mediator through Cummins Mediation Services (www.cumminsmediationservices.com).

ARTICLE: Hone your Courtroom Performance and Trial Skills

Here is a LINK to my article that appears in the current January/February edition of the Pennsylvania Lawyer magazine entitled "Hone Your Courtroom Performance and Trial Skills."

The article confirms how serving as a juror in the High School Mock Trial Competition put on by the Young Lawyers' Division of the PBA, and run by most county Bar Associations, can improve any attorney's skills as a litigator in the Courtroom.

Please support the Mock Trial Competition by contacting your local bar association for more information on how to participate.  As this year's competitions will be held virtually, you can participate from the comfort of your own office or home.

By participating you will be doing a good deed and and also helping yourself by reminding yourself of proper trial procedures and etiquette.

Article Published in the Journal of Tort Law: "Fighting the Good Fight: The Insurance Defense Litigator"

 

Here is a LINK to an article of mine entitled "Fighting the Good Fight: The Insurance Defense Litigator," which was published in the Widener University Commonwealth Law School's Journal of Tort Law. This is the only peer reviewed journal in the United States devoted to Tort Law.

The article is republished here with permission from the publisher, De Gruyter.

I was requested to analyze the day-to-day practice of an insurance defense litigator in tort matters. The focus of the article was to provide those in the legal academic field with insight into defense litigation in the tort arena of personal injury matters. 

The article attempted to provide that insight along with suggestions as to areas of training that law students may benefit from if offered in law school to prepare them for the practice of law in the area of civil litigation.

I send thanks to the Editor of the Journal, Professor Christopher J. Robinette, for inviting me to write for the Journal. I also send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for his efforts to get me involved in the creation of this year's edition of the Journal.

Formal Opinion: "Ethical Obligations For Lawyers Working Remotely"

Here is a LINK an April 10, 2020 Formal Opinion issued by the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility relative to "Ethical Obligations For Lawyers Working Remotely."

The Opinion emphasizes the need to protect client confidentiality, for attorneys to exhibit competence with practicing law virtually, and with respect to attorneys treating one another civilly in this new era of the practice.

A Little Humor......

This article of mine is reprinted here, with permission, from the October 22, 2007 issue of the Pennsylvania Law Weekly. 

LEARNING LESSONS FROM LAWYER JOKES:

Don’t be upset – use them as a motivator to improve, and discredit their sting

by

DANIEL E. CUMMINS, ESQUIRE

Lawyer jokes are an amusing, sometimes annoying, part of the practice. You’ve heard one, you’ve heard them all. With the negative sting of many of the lawyer jokes, it is easy to wince and give a wan smile while others laugh out loud with forced glee at the telling of such jokes.

Q: What’s the problem with lawyer jokes?

A: Lawyers don’t think they’re funny, and no one else thinks
they’re jokes.

Unfortunately, it is said that jokes in general require some modicum of truth to help make them funny. The act of getting upset at being the brunt of such jokes may lend them credence and may only serve to foster the telling of lawyer jokes. Perhaps a better way to react to lawyer jokes is not to be upset by them, but rather to use them as a motivator to better your practice and thereby contribute to improving the image of attorneys as a whole.


Q: How do you get a group of lawyers to smile for a picture?
A: Just say, “Fees!”

A main complaint by the public with lawyers is the fees charged and the manner in which they are charged. One way to avoid such criticism is to, wherever possible, politely remind the client that the result they seek, or have obtained, may not have been realized without the legal expertise provided.

In other cases where a favorable result for the client is not likely, the better practice may require an attorney to be up front with clients early in the attorney-client relationship about the futility of their claim or defense. This may serve to streamline the case, result in a quicker resolution, and save the client money in the long run, thereby improving the reputation of the attorney in terms of fees saved as a result.

Another way to avoid client complaints regarding the fees charged is to provide detailed, itemized bills that fully describe the services rendered. Clients may also be better served, as well as attorney reputations, if the clients are not unnecessarily double billed in the form of multiple attorneys or staff working on a single task.

Where a dispute arises with the client over attorney charges, it may also be the better practice to immediately attend to client questions about a bill with a willingness to compromise hopefully being present on both sides of the issue. A satisfied client obviously may be a repeat client or a source of other referrals. Therefore, a squabble over a few dollars in a present matter may not be worth the cost of other cases that could be realized in the future.

Another proactive way lawyers may offset the negative public perception regarding attorney fees may be through giving back to the community. Donations to local charities, volunteering time at local fundraisers, and participating in pro bono legal work all serve to display attorneys in a better light.


Q: Did you hear about the lawyer hurt in an accident?

A: An ambulance stopped suddenly.
There is probably no more common complaint against attorneys than their sometimes voracious pursuit of new clients. Yet, in a competitive world with a glut of attorneys, it appears that seeking out clients and attorney advertising is a necessary evil to support one’s practice.

Lawyers are commonly criticized for their rampant and sometimes crass advertisements and commercials. Perhaps a way to blunt such criticism is to instill more creativity into the advertising, maybe even humor, as opposed to the standard commercial of a somber attorney lamenting the woes of personal injuries and his or her ability to make all well again through a lawsuit.

One way to perhaps attract other clients is to include past clients in the advertising praising the positives of their experience with that attorney or firm. In this manner, rather than having the attorney patting himself on the back, the public will be hearing another member of the public speaking favorably of his or her experience.

In any event, attorneys should be mindful of the Rules of Professional Conduct 7.2 and 7.2 regarding “ambulance chasing” or direct contact with potential clients. Generally speaking, direct in-person solicitation of a prospective client by a lawyer is also frowned upon by the disciplinary board and should be avoided.

Q: What do you get when you cross a librarian with a
lawyer?

A: All the information you need, but you can’t understand a word of it.

* * * * * * *

Q: What do you get when you cross the Godfather with a
lawyer?

A: An offer you can’t understand.
Another common complaint about lawyers and legislators is their obstinate refusal to speak in plain, ordinary terms. Lawyers insist on using big words when little words would suffice [uh, when little words would do]. Legal jargon and Latin terms are still routinely used even though they should be avoided wherever possible when dealing with the public.

The problem of some lawyers refusing to utilize plain language has grown to the extent that awards are given out by the Bar when a lawyer is found to have fostered the use of plain English in his practice. So perhaps lawyer jokes in this regard can serve as a reminder to use plain English in our speech and writing whenever possible.


Q: How many lawyers does it take to change a light bulb?

A: None, they’d rather keep their clients in the dark.
Since the dawn of legal practice, clients have complained about the failure of lawyers to keep them apprised as to the status of their case. The problem had apparently more recently become so common that Rule of Professional Conduct 1.4 was promulgated which, in part, requires every attorney to “promptly comply with reasonable requests for information” and to otherwise “keep the client reasonably informed about the status of the matter.”

Perhaps if attorneys strived to keep their clients informed with a call or a letter every thirty to sixty days, there would be one less ‘how many lawyers does it take to change a light bulb’ joke.


Q: “You seem to be in some distress,” the judge said to the witness. “Is anything wrong?”

A: “Well, your Honor,” said the witness, “I swore to tell the truth, the whole truth, and nothing but the truth, but every time I try, some lawyer objects.”
The lesson to take from this joke is to keep objections to a minimum at trial. By objecting only when truly necessary, an attorney may be able to avoid the public perception, by a jury no less, that the attorney is attempting to hide something, or worse yet, is a bully.

To prevent any adverse inferences by the jury to an objection, it may also be wise to give a short explanation for the basis of the objection. Giving this short explanation may not only explain to the jury the valid reason for the objection, but may also be crucial for properly preserving the objection as a basis for an appeal.

It may also be wise, whenever possible, to keep sidebar conferences with the judge to a minimum. Despite the best of instructions to a jury from a judge that sidebar conferences are a necessary part of a trial to deal with tangential issues, a jury will likely always feel that something is being kept from them and will also grow impatient with the delays caused by the conferences. The better practice may be to anticipate issues that may arise and address them with the court before the jury is brought into the room and put into the jury box.


Q: What’s the difference between a good lawyer and a great lawyer?

A: A good lawyer knows the law. A great lawyer knows
the judge.
This joke brings to mind scenes from The Verdict with Paul Newman and Civil Action with John Travolta and Robert Duvall in both of which movies is a pivotal scene in which the underdog lawyer is called into the judge’s chambers only to find the more experienced opposing counsel already in chambers having a friendly ex parte chit-chat with the judge. While friendly and courteous relations are to be encouraged between lawyers and the bench, attorneys and judges should strive to avoid the perception of the public, and of out-of-town attorneys, of any favoritism once the matter gets underway.


Q: How many lawyer jokes are there?

A: Just three, all the rest are true.
Lawyer jokes have unfortunately been an undying breed since the time of Shakespeare. Even up to today, on any given week, Leno or Letterman will unleash a zinger against lawyers to the delight of their audiences. On the internet, a simple Google search will reveal numerous web pages devoted to lawyer jokes.

While such jokes may never become extinct, their impact can be lessened by improved attorney conduct. Unfortunately, lawyers are not always adept at displaying themselves in the best light possible which is in part due to the adversarial and competitive nature of the practice. There will also always be some bad apples who will continue to highlight and foster a negative view of lawyers as a whole.

Yet, continued efforts by all members of the bar to better the image of lawyers through open and plain communication, professional and courteous behavior in the public eye, community service, and the zealous but sensible pursuit of justice on behalf of clients can all only serve to discredit the sting of lawyer jokes.

Daniel E. Cummins, Esquire is an insurance defense/coverage attorney with the Clarks Summit, Pennsylvania law firm of Cummins Law (www.CumminsLaw.com). In addition to being a civil litigation columnist for the Pennsylvania Law Weekly, he also writes for his own blog, Tort Talk, which provides updates on Pennsylvania civil litigation and insurance law issues (www.TortTalk.com).

PAST ARTICLE: "Lawyers, Look After Yourselves"

Here's a LINK to my article entitled "Lawyers, Look After Yourselves," which first appeared in the Pennsylvania Lawyer magazine back in the July/August 2103 edition and in which tips are provided to help improve one's overall well-being.  Take care and be well.

Ethical Opinion On Including Clients as "CC" On Emails To Opposing Counsel

The Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility has recently published Formal Opinion 2020-100 addressing the issues that may arise as a result of sending a client a copy of email communications by the attorney with opposing counsel. It is noted that the use of CC, BCC, and "Reply to All" in emails could give rise to the following ethical issues:

1. Instances where including a client's email address in the CC line may disclose confidential information about the representation in violation of Rule 1.6;

2. Instances where opposing counsel may reply to all in the response to a distribution chain that includes opposing counsel's client and thereby communicate with a party represented by another attorney;

3. Whether the use of a broadcast email will create an unacceptable risk that a client will respond to the entire distribution list and disclose privileged and/or confidential information;

4. Whether sending an email to opposing counsel with a CC or BCC to the attorney's client may create a risk that the client will respond to all and that the opposing attorney will deem such a response as consent for the opposing attorney to communicate directly with the client; and

5. Whether counsel who receives privileged information on an email chain created by the use of CC's or BCCs has a duty to report the disclosure of that privileged information to opposing counsel.

The ultimate conclusion of the Formal Opinion is that "Attorneys risk divulging attorney client confidential information and privileged information when they communicate with opposing counsel and include their clients on the same email. Attorney recipients of such email communications may be deemed to violate the no contact rule if they, in turn, reply to all and otherwise directly contact an adverse client without the other attorney's express consent except in situations where it is objectively reasonable to infer consent from the circumstances."

The Best Practices Tip from this ethical opinion is the recommendation that clients be emailed information in entirely separate emails wherever possible.

Please click HERE to read the entire Formal Opinion 2020-100.

I send thanks to Attorney Charles Wasilefski, the Executive Director of the Pennsylvania Defense Institute for bringing this ethical opinion to my attention.

ARTICLE: The Art of Mediating: The Goal Is to Settle, Not Win

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.

Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through Cummins Mediation Services.  Please contact me at dancummins@CumminsLaw.net for my resume, fee schedule or to arrange for a Mediation.   Thank you.

The Art of Mediating: The Goal Is to Settle, Not Win

The Legal Intelligencer

October 17, 2017    

By

Daniel E. Cummins

With the uncertainty of what a jury will do in a particular case and the significant costs associated with trying a case to verdict, alternative dispute resolution proceedings in the form of mediations and arbitrations have been a rising trend across the commonwealth of Pennsylvania.

The following practice tips for nonbinding mediations may assist litigants in bringing their cases to a desired resolution.

Be Fully Prepared

All too often, parties may arrive at a nonbinding mediation without having provided the opposing party with all of the 
information necessary to allow for a successful mediation.

On the plaintiff's side, there are times where a plaintiff has not yet finalized the information pertinent to the economic damages claims, such as wage loss claims or medical expenses claims. At times, the parties are still waiting for the completion of the lengthy process associated with securing health care, Medicaid or Medicare liens.

It is advisable to postpone any mediation proceedings until this information has been secured and documented so as to allow the defense to complete its evaluation and arrive at the mediation with additional settlement authority. The production of such information also provides the plaintiff with ammunition to argue for a higher settlement of the claims presented.

On the defense side, it may be advisable not to proceed to an arbitration until all written discovery, depositions and expert review of the claims presented has been completed.

Plaintiffs allowing a case to proceed to mediation before such items have been accomplished may be faced with a defense asserting that there is no additional settlement authority to be discussed at the conference but that the case may be revisited after the completion of additional discovery efforts, such as an independent medical examination of the plaintiff. Plaintiffs can take away this argument by not agreeing to proceed to mediation until such discovery tasks are completed.

Written Submissions Are Important

When proceeding to a mediation, it is important to provide the mediator with a concise, but thorough, overview of the claims and defenses presented. A concise chronology of the facts of the underlying matter will inform the mediator as to the legal issues presented and provide an initial sense as to the value of the claims asserted.

Written submissions need not contain a recitation of every medical visit or diagnostic study completed. Rather, the highlights of the plaintiff's treatment following the accident will suffice.

On the defense side, a mediation memorandum can be utilized to raise and provide support for defenses on the liability issues, the causation question and the alleged extent of the injuries and damages presented. A defense mediation memorandum can also be utilized to emphasize the plaintiff's prior medical history so as to confirm that the case presented involves an aggravation of a pre-existing condition claim.

There is also no need to provide a mediator with voluminous written materials to review. Rather, litigators should emphasize the highlights of the case through documentary evidence. Rather than providing the mediator with complete medical records, it may be advisable to only submit the notes of the important office visits and notable reports of diagnostic films and studies.

Also, rather than submitting entire transcripts of depositions, the better practice may be to submit the cover page of the deposition transcript along with the pertinent pages that may have been cited in the mediation memorandum.

In addition to not overburdening the ­mediator with unnecessary information, presenting more concise documentation will also serve to keep the cost of the mediation down as the mediator will have less to review in preparation for the proceedings.

Oftentimes, the parties will submit their mediation memorandum and supporting exhibits to the arbitrator confidentially. The better practice is to disclose your materials to the opposing party in order that the opposing party may share the same with their client in order to let their client know of the weaknesses of the case presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs and some claims representative are not familiar with how the mediation process works.

The better practice is to fully inform your client that, at a mediation, the mediator will likely have all of the parties in the room for an initial conference at which updates on the case presented can be provided. At the initial conference, both parties may also be invited to provide their overview of the case presented in order to let the opposing party know how the case is viewed by the opponent.

A plaintiff should be advised that he or she may be requested by the mediator at this initial conference to provide an update as to the client's condition and treatment. In this regard, a plaintiff who admits to improvement in his or her condition with the treatment provided to date adds to the credibility of that litigant. An injured party who contends that there has been no improvement whatsoever in his or her condition despite years of treatment may have their overall credibility called into question by the opponent.

If a plaintiff is reluctant to admit improvement, the plaintiff can add the proviso of that, while he or she may have improved somewhat over time, the injuries have not resolved and continue to limit the plaintiff in his or her everyday activities of daily living.

The client should be advised that, once the initial conference is completed, the mediator will likely put each party in a separate room and commence the negotiations by traveling back and forth between the rooms in a continuing effort to bring the parties closer together towards an amicable resolution of the claims presented.

The parties should also be made aware that there may be a reiteration of the same points over and over with different emphasis on different points at different times during the course of the mediation. This is all a part of the process of helping each side of the litigation to fully understand and appreciate the pros and cons of the claims and defenses presented.

The client and the claims representative should also be advised that the mediator has been selected to preside over this mediation because that person has experience in evaluating the claims presented in the jurisdiction in which the case is pending. It should be noted to the parties that a mediator typically does not provide the parties with his concrete evaluation of the case presented as the job of the mediator is not to evaluate the case. Rather, the mediator's function is to facilitate negotiations between the parties towards a settlement figure that each party may not be entirely happy with but are satisfied enough to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging in a mediation, parties may get so wrapped up in their own position that they may fail to listen to the information being provided by the mediator after the mediator has met with the opposing side.

Listening to what the mediator is reporting from his last conference with the opposing party may send signals as to where the opposing party may be willing to proceed in its next step.   Listening to such information may also assist the party hearing the information in formulating their next step in the negotiation process.

Be Clear on What Can Be Disclosed

At various times during a mediation, a party may disclose information to the mediator that the party does not wish to be disclosed to the opposing counsel.

When disclosing information to the mediator that a party does not wish to be revealed to the other side, that party should be clear in its statement to the mediator that such information should be kept confidential. Mediators will keep this information confidential to keep your trust.

The provision of such confidential information may assist the mediator in understanding certain aspects of the case and why a party may be taking a particular position on a particular issue. The disclosure of such information to the mediator confidentially may, in the end, assist the mediator in massaging the other side closer toward a settlement figure.

Willingness to Negotiate

Obviously, the success of any mediation depends upon the willingness of each party to negotiate reasonably. In addition to emphasizing the strong points of one's case, the credibility of the parties will be enhanced by that party's concession with respect to the weak points of their case presented. An admission of the weak points of a case, with an associated explanation as to how that party plans to deal with those weak points at a potential trial, will provide the mediator with information to take to the other side in the continuing negotiations on the case presented.

When going into a mediation, clients and claims representatives should be made aware that the goal is not to "win" the case, but rather to settle the case and secure compensation or close a file. Shifting the parties' focus from winning to settling prior to going into the proceedings may make all the difference in the success of a mediation. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Cummins Law. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation services through Cummins Mediation Services.