Congratulations to the Abington Heights High School Mock Trial Team On Advancing to the State Championships

Proudly congratulating the Abington Heights High School Mock Trial Team for winning both the District 1 Championship and then winning the Region 10 Championship last night which allows them to advance onto the State Championships set to take place in Harrisburg, PA on March 24-25, 2017.

During the competition, student teams present and argue both sides of a trial in an actual courtroom before a judge.  In some years the case involves a criminal trial and in other years the case is a civil trial.  The students, who play the roles of lawyers, witnesses, expert witnesses, plaintiffs and defendants, are assisted by teacher coaches and lawyer advisors in preparing for competition. Lawyers and community leaders serve as jurors for the mock trials. The juries determine the winners in each trial based on scoring of the teams' abilities to prepare their cases, present arguments, and follow court rules and procedures.

The Abington Heights High School's Teacher Advisor is Len Romanski, a social studies teacher at the school.  Along with Julie Zaleski, Esquire, Tom Specht, Esquire, Claire Czaykowski, Esquire, I served as one of the Attorney Advisors for the team and highly recommend that others look for local high school teams to assist them in preparing their cases for next year's Mock Trial Competition (teams typically begin practicing near the end of the calendar year for the competitions that start in February every year). 

Serving as an Attorney Advisor is a truly rewarding experience and a great way to give back to the community and to generate good will for the legal profession.  You will likely also find that you learn a thing or two from these young attorneys in terms of coherent, concise case presentation.

Another way to assist the Mock Trial program is to volunteer your time to serve as a juror at one of the trials.  The teams advance based upon their scoring as determined by attorneys who sit on the jury and who evaluate the attorneys on their Opening Statements, Direct Examination, Cross-Examination, handling of objections, and their Closing Arguments.  The student-witnesses are also judged by the jury in terms of their performances as well.  The Mock Trials typically run approximately two hours and so the time commitment is minimal but the rewarding feeling of helping out the program is great.

As stated, encouraging and mentoring potential future lawyers through the Mock Trial program is a great way to pass down the traditions of our profession to the next generation.

TORT TALK PRACTICE TIP

SCHEDULE TIME OFF (NOW--WHILE YOU CAN)

As we start to move towards Spring, look ahead several months on your calendar and schedule some time off for yourself later while the coast is clear.

Scheduling vacations, or at least a few long weekends here or there, helps to rejuvenate one’s self and,thereafter, increase productivity.

Although a lawyer can never completely get away from the practice of law, pushing it to the back burner for a day, or several days, and focusing on the other, more important and/or enjoyable aspects of your life can result in your being refreshed upon your return to work.

Judge Brann of Middle District Addresses Viability of Claims of Recklessness and Punitive Damages

In a recent decision in the case of Wilson v. TA Operating, LLC, 4:14-CV-00771 (M.D. Pa. Feb. 13, 2017 Brann, J.), Judge Matthew W. Brann of the Middle District Federal Court of Pennsylvania denied a Partial Motion for Summary Judgment and held that allegations of negligent automobile repairs can rise to the level of recklessness required to support a claim for punitive damages.  

The court found that genuine issues of material fact and evidence concerning mechanic training and supervision serve to defeat the Motion for Summary Judgment.

The court also ruled that a principal, such as an employer, can be held vicariously liable for punitive damages if the actions of its agent, or employee, in the course of employment were reckless.   A ratification or direction of the acts by the principal, or employer, is not required for this finding of vicarious liability.  

Here is a LINK to the Court's Order.  Here is a LINK to the Court's supporting Opinion.
 

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

 

Superior Court Addresses Propriety of Worker's Compensation Carrier Suing Tortfeasor for Recovery of Lien

In the case of The Hartford Ins. Grp. v. Kamara, No. 976 EDA 2016 (Pa. Super. Feb. 10, 2017 Olson, Solano, Fitzgerald, JJ.)(Op. by Olson, J.), the court ruled that a a workers' compensation carrier could pursue claim against third-party tortfeasors by asserting the claim on behalf of the injured employee to establish the tortfeasors' liability to the injured employee, as opposed to bringing a subrogation claim.

The court rejected the argument by the defendants  that the Complaint should have been dismissed because appellant was attempting to assert subrogation directly against third-party tortfeasors in violation of the Workers' Compensation Act which provided that a right of action against tortfeasors remained in the injured employee such that an employer's/insurer's right of subrogation had to be achieved through an action brought in the name of the injured employee or joined by the injured employee.

The Superior Court held that the worker’s compensation carrier properly brought the action on behalf of the injured employee to establish the tortfeasors' liability to her. The Court reasoned that the Workers' Compensation Act did not require an injured employee to be party to a suit for an employer or insurer to be able to assert its subrogation rights, but merely required the suit to be brought on behalf of or in the name of the injured employee.

Anyone wishing to review this Opinion online may click HERE.

 

Source:  “Digests of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2017).

TORT TALK PRACTICE TIPS

THE QUESTION PRESENTED IN YOUR BRIEF COUNTS

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

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

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

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

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

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

Allegations of Recklessness and Punitive Damages Claims Stricken from Run-of-the-Mill Auto Accident Case

In her recent decision in the case of Walker v. John H. Helsel Agency, No. 2016-CV-09969 (C.P. Luz. Co. Feb. 22, 2017 Polachek-Gartley, J.), Judge Tina Polachek-Gartley of the Luzerne County Court of Common Pleas sustained Preliminary Objections filed by a Defendant in the nature of a Motion to Strike punitive damages claims and allegations of reckless conduct in a Plaintiff’s Complaint filed in a motor vehicle accident matter.  

The Defendant asserted that the allegations contained in the Plaintiff’s Complaint pertained to a “run-of-the-mill” motor vehicle accident and did not rise to the level of outrageous conduct required under Pennsylvania law to support a claim for reckless conduct or punitive damages.  

After reviewing the current status of Pennsylvania law on punitive damages against the allegations of the Complaint, the court agreed and found a lack of facts to support of allegations of recklessness or reckless conduct as pled in the Complaint.  This matter involved an intersectional motor vehicle accident. 

The court sustained the Defendant’s Preliminary Objections and dismissed the Plaintiff’s punitive damages claims without prejudice.  The court noted that, if additional information was obtained during discovery to support such claims, the Plaintiff would be granted a right to include punitive damages at that time. 
 
The court otherwise denied other Preliminary Objections filed by the Defendant seeking the removal of allegations in the Complaint pertaining to information from the police report, traffic citations, and insurance coverage.

Anyone wishing to review this decision may click this LINK.

The defense counsel in this matter was Attorney Stephen T. Kopko of the Scranton, PA insurance defense law firm of Foley, Comerford & Cummins.

Pennsylvania Superior Court Affirms Preclusion of Portion of Expert Witness's Testimony in Auto Accident Case

In its non-precedential decision in the case of Lingham v. Faison, No. 530 EDA 2016 (Pa. Super. Jan. 11, 2017) (Mem. Op. by Shogan, J.), the Pennsylvania Superior Court ruled that a trial court properly precluded an expert medical witness’s opinion regarding the reasonableness and the necessity of a rhizotomy medical procedure where that expert lacked any particular knowledge of the procedure and could not otherwise identify the standard of care.   Judgment in favor of the defense was affirmed.  

 

This was a limited tort auto accident matter.  The above issue was raised during the videotaped deposition for trial of the Plaintiff's medical expert  

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

 

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Jan. 31, 2017).