BOOK PUBLISHED: RAISING THE BAR - A Practical Guide to the Practice of Law by Daniel E. Cummins

The Pennsylvania Bar Institute recently published my book entitled Raising the Bar: A Practical Guide to the Practice of Law.  This book has been published as an e-book.

To the extent you may be interested in the same, here is a LINK to the Book cover, the Table of Contents so that you can get a sense of the content, and an excerpt from the article entitled "Lessons from The Godfather."

The book compiles my articles from over the past two decades providing a wide variety of tips and encouragement to help young lawyers and experienced lawyers alike improve their practice of law.

Here is the LINK to the webpage on the PBI's website where the book can be purchased if you are interested.

Thank you for your consideration.

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. 

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).

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.

ARTICLE: 'Tis the Season to Be Civil: Lessons from 'A Christmas Story'

The below article of mine recently appeared in the November/December, 2014 edition of the Pennsylvania Lawyer Magazine and is republished here with permission.  Hope you enjoy it:

'Tis the Season to Be Civil
Lessons from 'A Christmas Story'

by Daniel E. Cummins


It’s almost that time of year again — almost Christmas Day and 24 straight hours of the movie "A Christmas Story," with little Ralphie Parker calling viewers back to their childhoods, provoking memories of the timeless, indelible and universal experiences of the holiday season.

Ralphie, narrating in his adult voice: "Christmas was on its way. … Lovely, beautiful, glorious Christmas, upon which the entire kid year revolved!" That great time of the year has come again, when, as Ralphie puts it, "We [plunge] into the cornucopia, quivering with desire and the ecstasy of unbridled avarice."

In addition to glorifying the holiday season, the movie is a gift of life lessons, some of which can even be applied to the practice of law.

* * *

Mr. Parker, reading the side of the box containing the prize he’s won: " ‘Fra-gi-ley.’ That must be Italian." Mrs. Parker: "I think that says ‘Fragile’." Mr. Parker: "Oh, yeah."

Trying to use new words in your vocabulary can cause embarrassment when more common words will suffice (um, I mean, when more common words will do). While the practice of law is filled with

Latin terms and legalese, and while some lawyers think they are fancy people who have to use fancy words just because they have a law degree, no normal person would use "heretofore" or "aforementioned" in a spoken sentence.

Speaking normally, avoiding legalese and Latin, and knowing the words you are reading or saying to others will help you to connect with a jury and, in your overall practice of law, take you further in successful interactions with others, be they jury, clients, opposing counsel or the court.

* * *

Ralphie, narrating as an adult: "My father worked in profanity the way other artists might work in oils or clay. It was his true medium."

Although the thought of using profanity in the law is often enticing, this quote does not advocate the use of such language, other than in unleashing a tirade within your mind against a vexatious opposing counsel or a cantankerous judge who has chastised or embarrassed you, just to get that anger and stress out of your system.

This quote is also offered to suggest that it pays to find a niche in a particular practice area and become a master at it. With all the loopholes and trapdoors present in the many different areas of the law, an attorney’s stress level can be reduced by sticking to fewer areas of practice in which to excel. Increasing one’s reputation in fewer areas of the law should lead to more referrals from other attorneys who dare not dabble in your area of expertise.

* * *

Ralphie, narrating as an adult: "Getting ready to go to school was like getting ready for extended deep-sea diving."

It’s a funny scene in the movie when Ralphie’s mom gets Randy, Ralphie’s younger brother, ready to go out in the cold Cleveland weather by using the universal tactic of all mothers: tugging on layers of socks, pants, shirts, coats, hats, gloves and scarves to the point that the poor kid can’t speak clearly or move his muffled arms and legs.

Layering can have a positive effect in trial preparation. Layers and layers of preparation should be applied to ensure that you know a file inside and out before you enter the courtroom. In order to make the matter properly fit your theory, each layer of your case, from opening to closing, should be neatly organized, one layer on top of the other in an orderly fashion, so the case will flow at trial. Just be sure to keep your case presentation to the salient points necessary to stay with the jury. Overdoing the layers will only serve to hamper your flexibility and muffle your message.

* * *

Ralphie: "Scut Farkus! What a rotten name. … There he stood, between us and the alley. Scut Farkus staring out at us with his yellow eyes. He had yellow eyes! So help me, God, yellow eyes."

There’s at least one in every county — a Scut Farkus-like attorney who gets off on bullying his or her way through the litigation process outside the presence of the authority figure of the court.

Unfortunately, these bullies usually train their associate attorneys to practice in the same unsavory manner, much in the way toady sidekick Grover Dill serves Scut Farkus in the movie. And so the cycle regrettably continues, as these bully attorneys abuse the rules of civility without fear of repercussions from any ethics board or judge. The Rules of Professional Conduct have no teeth in regulating civility among lawyers, and judges often ignore the consternation caused by bullying and unreasonable attorneys, not wanting to be bothered with the tedium of maintaining decorum among the attorneys inside or outside of their courtrooms. In the end, ignoring the misconduct of these attorneys ultimately reflects poorly on these particular courts.

But, as Scut Farkus learns the hard way, sometimes what goes around comes around, and, hopefully, the bully attorneys will get their due one way or the other down the line.

As noted below, "A Christmas Story" teaches us that there are at least two ways to deal with a bully.

* * *

Ralphie, narrating as an adult, describing his brother’s encounter with the bullies: "Randy lay there like a slug. It was his only defense."


As Randy lay there, the attention of Scut Farkus was fortunately diverted elsewhere. Similarly, it may pay to lie low for a day or two after first receiving a bullying voicemail, email or letter from an unreasonable and emotionally ugly opposing counsel. Bullying attorneys usually have several needless fights going on at once and it may pay not to engage immediately in response. If a response is necessary, prepare a calm, cool and collected letter to be sent by snail mail, extending the cooling-off period even longer.

More often, however, a slug-like response to such bullying is not appropriate, and standing up to the bully to protect a client’s interest is a more appropriate response.

* * *

Ralphie, narrating as an adult, describing a different kind of reaction to an encounter with the bullies: "I have since heard of people under extreme duress speaking in strange tongues. I became conscious that a steady torrent of obscenities and swearing of all kinds was pouring out of me as I screamed."
While physically pummeling or verbally going up one side and down the other of a bullying opposing attorney is (unfortunately) frowned upon in our noble profession, some bullying cannot be allowed to
go unopposed.


Unreasonable opposing attorneys usually seek out and relish verbal skirmishes as a way to compensate for and distract from their sad fears of the inferiority of their own skills, not to mention their likely lack of self-esteem and confidence.

Rather than engaging the blustery rhetoric of a totally unreasonable attorney on the phone or in person, it may be more advisable to deal with such bullying barristers at arm’s length in written confirming letters or emails to lock them into place on a particular issue and thereby prevent them from slithering out of commitments or advances made in the litigation.

Moreover, if it becomes necessary, such attorneys will usually wilt in the face of the threat of court intervention by way of a motion to compel or otherwise. One can only hope that a judge repeatedly faced with needless issues caused by a bullying attorney will someday put that attorney in his or her rightful place so the unnecessary, uncivil conduct stops.

In the end, the key is not to succumb to the jeering dares, taunts or tactics of a bullying attorney by reacting in a way that you may regret later.

* * *

　

Flick: "Are you kidding? Stick my tongue to that stupid pole? That’s dumb." Schwartz: "That’s ‘cause you know it’ll stick!" Flick: "You’re full of it." Schwartz: "Oh yeah?" Flick: "Yeah!" Schwartz: "Well I double-dog dare ya!" Ralphie, narrating as an adult: "Now it was serious. A double-dog dare. What else was there but a ‘triple dare you’? And finally, the coup de grace of all dares, the sinister triple-dog dare." Schwartz: "I triple-dog dare ya!" Ralphie, narrating as an adult: "Schwartz created a slight breach of etiquette by skipping the triple dare and going right for the throat!"

Just as etiquette is to be followed during the height of a playground challenge, so should etiquette be followed in the heat of a legal battle. For example, rather than skipping over professional courtesies and slapping an opponent with a discovery motion to compel on the 31st day, start with a polite "dare" to opposing counsel that his or her not answering discovery within another 30 days will provoke a motion to compel. When that time runs out, maybe even hit the opponent with a "double-dog dare" thereafter by way of a second letter noting that you will have no choice but to proceed with the motion if the responses are not promptly produced.

At later proceedings in the litigation, such as at trial, be up-front and forthright with opposing counsel regarding your plan of action, and hopefully expect the same courtesy in return. For example, let opposing counsel know your planned order of witnesses and what exhibits you intend to use.

In the end, when going toe-to-toe with opposing counsel in discovery or at trial, listen to your gut instinct and refrain from succumbing to the pressures of "dares" or tactics that might take your case in the wrong direction.

* * *

Mr. Parker: "It’s a major award." Swede: "A major award? Shucks, I wouldn’t have known that. It looks like a lamp." Mr. Parker: "Is is a lamp, you nincompoop. But it’s a major award. I won it." Swede: "Damn, hell, you say you won it?" Mr. Parker: "Yeah. Mind power, Swede, mind power."


The leg-lamp award in "A Christmas Story" is arguably one of the most iconic and recognizable movie props of all time. The lesson here is to remember that perceptions matter in life and in the practice of law. The movie shows that if such a ridiculous object can be viewed as a mere lamp by one person and yet a "major award" by another, there is always the chance that a skillful presentation of a weak legal argument or theory of a case may pass muster and even be accepted by others if you truly believe that what you are arguing for is the proper perception of the matter.

* * *

Just about everyone other than Ralphie: "You’ll shoot your eye out kid!"

In "A Christmas Story," the one present 9-year-old Ralphie desires most is a Red Ryder BB gun, but he is repeatedly rebuffed in this quest with the above quote from his mother, his teacher and even Santa Claus. In the end, however, Ralphie’s old man comes through with the gift on that glorious Christmas morning.

There’s no real lesson here for the legal world, rather only a hope that the holidays bring to all the gift of childlike joy, excitement and enjoyment of this wonderful season of the year.




Daniel E. Cummins is a partner in the Clarks Summit, PA law firm of Cummins Law with more than 20 years of insurance defense experience.  He focuses his practice on motor vehicle accident cases, UM/UIM matters, insurance coverage issues, and premises liability and productsliability cases.  Attorney Cummins is also available as a Mediator under Cummins Mediation Services.  He is also the sole creator and writer of the Tort Talk Blog at www.TortTalk.com.

Source of Images and Quotes:  A Christmas Story (1983).



Tort Talk Tip: Saying Please and Thank You Will Separate You

The simple act of always saying "Please" and "Thank you" in all of your interactions with any person will separate you from your competitors in business.

TORT TALK TIP: Don't Leave a Voicemail When They Are On Vacation - Send an Email Instead

It seems that most attorneys and claims professionals will appreciate it if, when you call them and it turns out that they are on vacation, that you not leave a voicemail as their voicemail inbox will usually get filled up.

Once you hear from the receptionist or the voicemail message that the person you are calling is on vacation, extend them the courtesy of not filling up their voicemail inbox and, instead, hang up without leaving a message and send an email instead.

Sending an email will help you by keeping your inquiry in writing and documented for your file.

An Oldie But Goodie

It's hard to believe we are getting into June already--the sixth month of the year.  As we are 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 Scranton, PA law firm of Foley, Comerford & Cummins.  He is also the sole creator and writer of the Tort Talk Blog found at www.TortTalk.com. 

TORT TALK TIP: COURTROOM ETIQUETTE

The following Courtroom Etiquette tips are offered up to lawyers young and old who may have been lulled into bad habits by watching too many legal dramas on TV or in the movies which typically portray hotshot lawyers who think that the courtroom is theirs as opposed to the Judge's:

-Always arrive a half hour early for your argument or hearing so as to ensure that you will be on time.

-Hand your business card to the court reporter prior to the start of the proceedings; write the name of your client on your card.

-Be polite to the tipstaff and court personnel.

-Always stand when addressing the court, even if other attorneys don't.

-Try to always refer to the Judge as "Your Honor" instead of "Judge."

-Always ask permission to approach or move about in the Judge's courtroom.

-Always stop talking, even in mid-sentence, if the Judge starts to speak.

-Never interrupt a Judge while she or he is speaking.

-Never interrupt opposing counsel -- 99% of the time you will get your chance to respond.

-Don't make faces at opposing counsel's statements.  Be stoic.  Your calm, measured legal argument will win the day not your faces or sighs or shakes of the head.

-Last but not least, keep your cell phone in your pocket or briefcase and give your full attention to the proceedings.