Lessons Offered, Learned in Kenya the Art of Education Requires a Give and Take 24 by Kyla Rivera-Smith

Vol. 83, No. 2 Philadelphia Bar Association Quarterly Magazine Summer 2020 “You Lost That Loving Feeling” – NNowow HHowow DDoo YYouou SSeverever YourYour FinancialFinancial TiesTies

BY JULIE A. AUERBACH

A TRIBUTE TO NANCY HEBBLE Lessons Offered, Learned in BY DAN CIRUCCI Kenya BY KYLA RIVERA-SMITH

THE PHILADELPHIA L AW Y ER CONTENTS Vol. 83, No. 2 Philadelphia Bar Association Quarterly Magazine Summer 2020 DEPARTMENTS

4 From the Editor By eMManueL o. iheukwuMere

6 From the Chancellor By ChanCeLLor hon. a. MiChaeL SnyDer (ret.)

7 Ethics By DanieL J. SiegeL 18 So, You Want to Pay a Fact Witness?

FEATURES 8 In Memoriam

13 A Tribute to Nancy Hebble 9 Technology A tribute to a former managing editor By DanieL J. SiegeL By Dan CiruCCi Make your PowerPoint presentations presentable 16 A Warrant for the Woodsman 29 Book Review Rules are so for a reason By DenniS SuPLee By Steve LaCheen “Acts of Omission” by James S. Botswick, Esq.

18 Before Stonewall 31 “Lawyers Love Latin” Crossword Puzzle Philadelphia’s ‘Annual Reminders’ of the 1960s By Robert J. Stern By PatriCk MCknight 32 That Was Then - 2005 20 Philadelphia Lawyer Changes Her 4th Annual YLD BooZoolee “Focus” Switching careers mid-stride By Mary-kate Martin 22 “You Lost That Loving Feeling” Now How Do You Sever Your Financial Ties By JuLie a. auerBaCh 24 Women Leaders Wanted Reflections on the Status of Women in Leadership Positions at the Bar By hon. SanDra Mazer MoSS (ret.) 26 Lessons Offered, Learned in Kenya The art of education requires a give and take 24 By kyLa rivera-SMith

Cover Image by Steve Buissinne from Pixabay

2 the philadelphia lawyer Summer 2020 the philadelphia lawyer Summer 2020 3 FROM THE EDITOR Reality of Racial Injustice and Possible Solutions EMMANUEL O. IHEUKWUMERE

efore the video showing the senseless description of a shoplifting suspect; the and preventable death of 47-year- police shooting—within 2 seconds of old African American man George arrival—and death thereof of 12-year-old Floyd at the hands of a Caucasian Tamir Rice in November 2014 in Cleveland BMinneapolis police officer stemming from a for reportedly shooting a toy gun not at the suspicion of Mr. Floyd allegedly attempting police, but within a park; the police-inflicted to use a $20 counterfeit bill, and the resulting spinal cord injury resulting in the death of protests and marches, I had a different topic for 25-year-old Freddie Gray in April 2015 in this editorial. However, that series of events, Baltimore, stemming from suspicion of Mr. along with multiple equally senseless and Gray having a knife in his possession; the preventable deaths of other minority men and gunshot death of 25-year-old Ahmaud Arbery women, particularly African American men, in February 2020 in Sattila Shores, Georgia led me to this editorial. by a vigilante former police-officer-and-son Those other killings in the past few duo resulting from an alleged attempt by the years, in addition to Mr. Floyd’s, include, duo to make a citizen’s arrest; and the police among others, the police chokehold death of shooting death of 26-year-old EMT Breonna 43-year-old Eric Garner in July 2014 in NYC, Taylor in her own apartment in March 2020 in connection with a suspicion of Mr. Garner in connection with the service of a no-knock allegedly selling untaxed cigarettes; the police shooting death warrant. of 18-year-old Michael Brown in August 2014 in Ferguson, These unjustified killings, although not reflective of the Missouri, in connection with Mr. Brown allegedly fitting the behaviors of many police officers who serve honorably, is

4 the philadelphia lawyer Summer 2020 emblematic of our society where many, his hands my driver’s license, vehicle silent and indifferent in the presence of including within law enforcement, registration, and certificate of insurance. racial injustice. condone the distorted belief that the So, I speak from experience as to the lives, health, and dignity of minorities, endearing legacy of racial stereotyping Emmanuel O. Iheukwumere (lawyer@ in particular African American men, and injustice. emmanuellawfirm.com), founder of do not have the same value as those of Complete elimination of racial Emmanuel Law Firm, LLC, is editor-in- their Caucasian counterparts. Before injustice, in my opinion, is impossible chief of The Philadelphia Lawyer. expressing surprise at this statement, due to our human nature, but men and keep in mind that although racism is not women of goodwill, of every color innate, racial injustice has been a learned and race, can take steps to significantly The and endearing legacy of our nation. improve racial justice after first educating Racial injustice was a major factor in themselves on the trials and tribulations Philadelphia the American Civil War, in the enactment of minorities being judged daily on the of Jim Crow laws, in numerous racially basis of their color and not on the content Lawyer deplorable U.S. Supreme Court rulings, of their character. Such steps could EDITOR-IN-CHIEF including Dred Scott v. Sanford, 60 U.S. include, among others: (1) frequently Emmanuel O. Iheukwumere 393 (1857), Plessy v. Ferguson,163 U.S. donating money, time, and other resources 537(1896), and Korematsu v. United to social justice organizations; (2) States, 323 U.S. 214 (1944), and in many creating social justice organizations; (3) Editorial Board other policies that have had and continue supporting adoption and implementation David I. Grunfeld Stephen Robert LaCheen to have devastating effects on our minority of community policing; (4 )insisting Richard G. Freeman populations. Many professionals, on banning law enforcement practices Michael J. Carroll including those in law and medicine, have such as chokeholds and neck restraints Deborah Weinstein consciously and unconsciously aided that have had, and continue to have, Daniel J. Siegel and abetted racial injustice by insisting catastrophic impacts on the lives of people Justine Gudenas on the status quo and through silence of color, particularly African American Rochelle M. Fedullo Albert S. Dandridge III and indifference to the consequences of men; (5) stepping out of our comfort Steven R. Sher racial injustice, including refusals and zones, especially by our Caucasian Jennifer Platzkere Snyder unwillingness to confront and challenge colleagues, to speak up and condemn Brian McGinnis negative stereotypes, and unreasonable racial stereotypes/insensitive racial Daniella Price suspicions of racial minorities, especially statements by others, and reassessing and Niki T. Ingram African Americans. keeping in check our own conscious and John Gregory As an African American man and unconscious racial biases; (6) making Jonathan Aronchick Matthew Faranda-Diedrich trial lawyer, I have had my share of concerted efforts to know your minority Angela Giampolo judges, unfamiliar with me, assume that colleagues, neighbors, staff, etc.; (7) Harold Cohen my junior colleagues and/or associates practicing the golden rule, especially were lead counsel either in settlement when tempted to make stereotypical Editing and Design negotiations or during jury selections. I assumptions about minorities; and (8) Brittany Anne Robertson have had, and continue to have “the talk” joining peaceful protests against racial with my children, especially my two sons, injustice and discrimination. and nephews on safe ways to navigate As Professor Philip Aka and I pointed Philadelphia encounters with the police. These were, out in our 2001 law review article, “Title and are, discussions which most of my VII, Affirmative Action, and the March Bar Association

Caucasian colleagues probably do not Toward Color-Blind Jurisprudence, CHANCELLOR have, but which I deem essential to the Temple Political & Civil Rights Law Hon. A. Michael Snyder (Ret.) safety of my family members, considering Review,” Vol. 11.1, the Civil Rights Acts Chancellor-Elect many examples of minor contacts with of the 1960s were made possible through Lauren P. McKenna law enforcement result in the arrests, the great sacrifices of men and women Vice Chancellor injuries, and deaths of minorities. I have of all races who had the courage to fight Wesley R. Payne IV had my share of encounters with police for racial justice. The same collaboration Secretary for minor suspected traffic infractions, between men and women of all races Jennifer S. Coatsworth where young officers about the same age is required to effectively address the Assistant Secretary as my children have addressed me with ongoing racial injustices in our society, in Kathleen Kirkpatrick a level of disrespect I doubt they would both the public and private spheres. Treasurer have had with my Caucasian colleagues. If you are not taking actions to Marc J. Zucker On one occasion, I had to calm my older discourage injustice because it’s not Assistant Treasurer son down when, in his presence, a young happening to you, your family members, Matthew S. Olesh officer was being incredibly rude and friends, and those who look and speak aggressive, going as far as questioning like you, you are encouraging and Executive Director me about the ownership of the luxury validating such actions. You cannot be Harvey L. Hurdle, Jr. SUV I was driving, despite having in a drum major for justice by remaining

the philadelphia lawyer Summer 2020 5 FROM THE CHANCELLOR New Shoes or a Haircut

93RD CHANCELLOR HON. A. MICHAEL SNYDER (RET.)

When we want to look for guidance to think that the problems that are endemic through these dual pandemics of disease to our society are the problems of others. and hatred, we find ourselves stymied at We must take ownership of the need to the paucity of wise counsel coming from lead, to call out bad conduct when we see many of our elected leaders. Scientific it, and to advocate for good. A democracy experts on the COVID-19 pandemic, who is a fragile organism; it thrives when it is should be listened to with respect, are nurtured, but it withers when it is ignored. denigrated by a President who advocates Looking at ourselves in the mirror the use of injections of Clorox, or the of the world, there is no question that we swallowing of medications that have need a new haircut, but we also need new been deemed dangerous by the organized shoes to get us to the barber. It’s up to ver the past few months, as scientific community. Mayors and each of us to act as the new shoes to get we’ve stayed at home to be governors who seek to calm and unite America a new haircut. safe, working at home, reading a citizenry rightfully inflamed by the and hearing about the world murders of innocent civilians by police, Hon. A. Michael Snyder (Ret.) (msnyder@ Oaround us in utter chaos, we may have whether active or former, are called weak adrdri.com) is the 93rd Chancellor of the had a tendency to let ourselves go a bit. by this same president, who advises that Philadelphia Bar Association. In our idle moments, as we’ve taken stock protesters should be “put down” as if they of our appearance, we might have asked are rabid animals. ourselves, “What do I do to spruce myself There should be no question that Get Published in up? What do I change first? Do I start at change in leadership at the national the top with a new haircut, or do I start at level is an imperative. There should be the bottom with some new shoes?” no question that we need leadership at These offhand idle-moment petty all levels that is rational, thoughtful, thoughts came to my mind this past week calm, and informed. We cannot continue as I sit here writing this column, which to exist as a nation—as a democracy— The Editorial Board of this mag- you are seeing in July. On their own, these with leadership that bases its actions on azine welcomes submissions thoughts are barely worth writing, until I insults, threats, innuendo, exaggerations, from attorneys and other profes- realized that they are questions that are falsehoods, and Tweets. Change is clearly sionals who wish to share their relevant on a much larger scale. Restated needed at the top of our government. expertise on law-related topics. in global terms, the questions really are: However, in order to accomplish As policy, we do not compensate “How do we change where we are as change at the top, we must work to our writers. a nation? What are our priorities as we accomplish change from the bottom up. move forward? How do we make us, as We must reexamine our own thoughts and Articles must be original and pre- Americans, better?“ actions. We must remember that a decent viously unpublished. As we’ve moved through the pandemic free society requires the cooperation and Manuscripts should adhere to and COVID-19, with ineffective and effort of all. the following word counts: negative national leadership, we’ve also As lawyers, we are the foundation of found ourselves in the middle of another any civilized society. We are relied upon to * Major Law-Related pandemic: the pandemic of heightened advocate for, to create, and to administer Articles: 2,000 words racial tensions, violence, and death, all the structures of a decent society. We are, * Other Law-Related spurred on by the same negative national in fact, charged with being the agents of Features: 1,500 words leadership. change. We can no longer allow ourselves * General Interest: 1,500 words * Fiction: 1,000 words * Practice Areas: 750 words The Philadelphia Lawyer (USPS #025-241), printed with soy inks on recycled paper, is published quarterly in March, June, September and December by the Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, Pa. 19107-2955. * Essays or Humor: 750 words Telephone: (215) 238-6300. E-mail: [email protected]. The opinions stated herein are not necessarily those of the * Book Reviews: 750 words Philadelphia Bar Association. All manuscripts submitted will be carefully reviewed for possible publication. The editors reserve the right to edit all material for style and length. Advertising rates and information are available from Shawn D. Phillips, Corporate Account Executive, Marketing Solutions, ALM, 1617 JFK Boulevard, Suite 1750, Philadelphia, PA For more information, 19103, (215) 557-2340. Periodicals postage at Philadelphia and additional locations. POSTMASTER: please send changes e-mail: [email protected]. to The Philadelphia Lawyer, c/o Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, PA 19107-2955. As policy, we do not compensate our writers.

6 the philadelphia lawyer Summer 2020 ETHICS By DANIEL J. SIEGEL So, You Want to Pay a Fact Witness? A Decision Likely Needed Sooner Rather than Later

an you pay a fact witness? It’s a question that every lawyer Cconfronts at some point. On its face, the question seems problematic because the payment is in exchange for favorable testimony. Plus, under Pennsylvania Rule of Professional Conduct 3.4, it appears that paying fact witnesses is prohibited. In reality, however, there are circumstances when payments to fact witnesses are permissible. Let’s consider the situation and recent guidance from the Pennsylvania Bar Association (PBA) and other ethics committees. The analysis begins at RPC 3.4(b), which says that a lawyer shall not “pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case.” The Rule permits a lawyer to “pay, cause to be paid, Photo by Sharon McCutcheon on Unsplash guarantee or acquiesce in the payment of (1) expenses reasonably incurred by a necessarily be transparent, as it will time spent attending trial or deposition [fact] witness in attending or testifying; potentially be subject to disclosure, either and time spent during pretrial interviews [and] (2) reasonable compensation to during the discovery process or during and preparation: “As long as it is made a [fact] witness for the witness’s loss of cross-examination.” In concluding that clear to the witness that the payment time in attending or testifying.” the Rule permits compensation for time is not being made for the substance or In Formal Opinion 2019-100 devoted in preparing and presenting efficacy of the witness’s testimony, and (December 3, 2019), the PBA Committee testimony, the Opinion explains that is being made solely for the purpose of on Legal Ethics and Professional providing competent representation compensating the witness for the time the Responsibility concluded the Rules under RPC 1.1 includes the time spent witness has lost in order to give testimony do not prohibit a lawyer from paying preparing a witness, as well as time spent in litigation in which the witness is not a reasonable compensation to a fact witness by the witness reviewing documents and party, the Committee is of the view that for the time devoted to preparing to testify other materials, as well as pre-testimony such payments do not violate the Model and for compensating the witness for preparation. Rules.” expenses incurred in connection with the Formal Opinion 2019-100 affirms Each opinion emphasizes that a lawyer testimony. The Opinion notes, however, Philadelphia Bar Association Professional must make it clear that compensation is “What is ‘reasonable’ compensation Guidance Committee Opinion 2014-2 for time spent, not the substance of the or reimbursement will vary depending (June 2014), in which the Committee testimony. In other words, lawyers must upon the unique circumstances of each concluded that RPC 3.4(b) permits inform witnesses to “tell the truth.” case, subject, however, to RPC 3.4(b)’s reasonable, transparent compensation for One remaining twist, however, express prohibition against payment of witness preparation. The PBA Opinion remains the question of whether a lawyer compensation that is ‘contingent upon the also builds upon the American Bar may compensate professional fact content of the witness’ testimony or the Association Standing Committee on witnesses—that is, attorneys and others outcome of the case.” Ethics and Professional Responsibility’s whose professional rates are high. Only So, what is reasonable? According Formal Opinion 96-402, in which the ABA Florida, Georgia, Hawaii, Massachusetts, to the PBA Opinion, “The compensation Committee declined to create a distinction New York, Oregon, Pennsylvania, and reimbursement arrangement must between compensating a witness for Tennessee, Texas, and Virginia have

the philadelphia lawyer Summer 2020 7 clarified or revised the language of Model the witness’s assistance with case and ■ ■ Rule of Professional Conduct 3.4(b) to discovery preparation that is directly IN MEMORIAM include compensation for professional fact related to the witness preparing for, witnesses. Under the Model Rules, Rule attending, or testifying at proceedings.” 3.4(b) merely prohibits an attorney shall In short, the consensus is that not “falsify evidence, counsel or assist attorneys may compensate fact witnesses, Ronald Jay Bayer a witness to testify falsely, or offer an including professional fact witnesses, Nov. 4, 2019, age 81 inducement to a witness that is prohibited for the reasonable time devoted to their David Charles Auten by law.” New Jersey has adopted this testimony, as well as their reasonable May 9, 2020, age 82 version of the Rule, for example. expenses. Attorneys who do should Although Pennsylvania courts have document the nature of the expenses, not confronted the issue of witness confirm that the compensation is for time Please send In Memoriam notices to compensation, the Florida Supreme Court and actual expenses, and not the substance [email protected]. addressed the issue in the context of of the testimony. attorney fact witnesses in Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 260 So. 3d 167 (Fla. 2018). In this case, Daniel J. Siegel, a member of the Board of which involved a breach of a litigation The Philadelphia Lawyer, is the principal Have you considered a contribution to the Philadelphia Bar Foundation in memory of consulting agreement, the fact witnesses of the Law Offices of Daniel J. Siegel, a de ceased colleague? at trial included attorneys previously which provides appellate, writing and trial involved in the lawsuit, an accountant, preparation services to other attorneys, For information, call Jessica Hilburn- as well as ethical and disciplinary Holmes, and other attorneys. The Florida Supreme executive director, at 215-238-6347. Court approved the compensation, guidance. He can be reached at noting that Florida’s version of Rule 3.4 [email protected]. “permits a party to pay a fact witness for

8 the philadelphia lawyer Summer 2020 TECHNOLOGY By DANIEL J. SIEGEL Your PowerPoint Presentation Doesn’t Have to Be Boring

aise your hand if you dread watching PowerPoint presentations. We have all seen the bad ones, and to paraphrase RJustice Potter Stewart’s definition of porn, you know the bad ones when you see them. As someone who presents 30 or 40 programs per year, I want to engage my audience, not see them looking at their watches counting down the minutes until I am done. This article will highlight some best practices when designing and using Microsoft PowerPoint with presentations. What makes a bad PowerPoint? There are many examples, although most have one or more traits: • Too much text. The presentation is supposed to complement what the speaker has to say, not provide a word- the screen only to confirm the right slide the slides and making sure that the for-word repetition of it. While necessary is showing and focus the remainder of material I am discussing is organized at times, large blocks of text are often your time on having a dialogue with the logically. There is no substitute for overwhelming. Plus, if you place every people who are there to learn from you. preparation. word on the slides, then why should your • Too much animation and • Use readable fonts (often called audience listen to you? too many transitions. Just because typefaces), and make sure the text is • Too much clutter. Most PowerPoint has more than 50 different large enough to read. There is a technique presenters are not trained in design, ways to move between slides or for text known as “typography” which involves yet many ignore this fact and place so and graphics to appear doesn’t mean arranging type so that the content is many visual objects on the slides, often you have to use all, or most, of them. legible, readable, and appealing. For to accompany too much text, making it Transitions serve a purpose, particularly example, highway signs use a sans serif hard for the audience to read the slides. when you are discussing items on a list, typeface known as “Highway Gothic,” And if the audience is focusing on how such as “bullet points,” but otherwise, use which was developed by the U.S. Federal bad the design is, then it won’t be paying them sparingly. Highway Administration. Sans serif attention to whatever you are saying. • Be prepared. Presenters who typefaces do not have the extra stroke or • Bad contrast. There is a reason know their material are more confident, decorative designs on the ends of letters, that most publications have black or more engaging, and know how long their like you have with Times New Roman. very dark text on a white background. programs will take. They don’t “stretch” My preferred typeface for presentations It’s easy to read. Your slides should also their talks to “fit” the time designated for is “Meiryo,” a sans serif style that has have good contrast. Avoid dark text on their talks. They also don’t talk fast or a very clean appearance on screen and dark backgrounds and light text on light skip through slides, leaving the audience in print and is optimized for on-screen backgrounds. to wonder what they missed. reading. Other typefaces that display well • Don’t read your slides. Again, Now that I have outlined what not to include Tahoma, Verdana, Arial, and like having too much text on the slide, do, here are some suggestions for what to Impact. Avoid calligraphic styles. reading them word for word again raises do to make your presentations attractive • Print a copy of your presentation the question why your audience should and engaging, so that your audience will and make certain that the pages are listen to you. want to stay until the end and will want to numbered so you can glance at the • Not talking to the audience. attend your next program as well. slides and easily see the page numbers. The best speakers are focused on the • Prepare. This seems obvious, Generally, I will print my slides six to audience, engaging them, barely looking but it bears repeating. When creating a a page so I can see what’s coming up; at the screen. The screen doesn’t care program, I spend about three hours for you can also view upcoming slides using what is there, the audience does. Look at each hour of presentation time, designing PowerPoint’s “Presenter View,” which is

the philadelphia lawyer Summer 2020 9 on the Slide Show tab in the “Monitors” Here is an example. Illustration 1 (on the most part, the suggestions are as easy section. The advantage of numbering page 9) represents the basic information to use as the Design Ideas feature. Take the pages is that if you must skip slides I wanted on the slide with an image. advantage of them, avoid the pitfalls, and or go back to one, you can just type in Illustrations 2 through 7 (found on pages implement the best practices; you will be the page number, such as 19 for page 19, 10–12) are examples of options presented pleased with the results. and hit the Enter key rather than scrolling to me in the Design Ideas sidebar. And backwards and forwards, which can be finally, Illustration 8 (on page 12) is my Daniel J. Siegel, a member of the Board of distracting to the audience and to you. final version, after I adjusted the font The Philadelphia Lawyer, is the principal • Use PowerPoint’s design features, sizes and typespacing. of the Law Offices of Daniel J. Siegel, most of which are on the “Design” tab, to PowerPoint presentations should which provides appellate, writing and trial help your program. In general, use a clean convey information relevant to what preparation services to other attorneys, look, but not one so barren that it appears you, the speaker, are discussing, and not as well as ethical and disciplinary you simply typed a few words on the slide overwhelm or distract the audience from guidance. He can be reached at and didn’t care how they looked. In that you. Many websites offer excellent tips [email protected]. regard, don’t do the things listed above. on how to improve your programs. For • Finally, use the little known “Design Ideas” feature in the “Designer” section on the Design tab. To get the best results, create your basic slide, including any needed graphic. Then go to the Design tab and click on Design Ideas and the program will suggest potential ways to make your slide more visually appealing. The process is easy and even those of us with limited design skills tend to get excellent results. Of course, you will still have to tweak the size of your fonts to create your slides, but it will be worth the effort. Since I started using this feature, audiences consistently comment about how my programs are visually appealing.

10 the philadelphia lawyer Summer 2020 the philadelphia lawyer Summer 2020 11 12 the philadelphia lawyer Summer 2020 IN MEMORIAM By DAN CIRUCCI A Tribute to Nancy Hebble

Nancy Hebble was a longtime member of the Philadelphia Bar Association staff from the early 80s until her retirement in 2001. She oversaw the publications of the Bar Association as Managing Editor and then as Director of Publications.

ancy Hebble told me the story was fortunate to have her insights during more than once—the story of my years as a bar leader.” how she left Ohio and came to Nancy could also see possibilities Philadelphia. that others might overlook. Long before NHaving completed most of her yoga was all the rage, former Chancellor schooling, Nancy was a young adult still Mark Aronchick recalls that Nancy “had living with her family in Columbus when the guts and foresight to feature me in her mother matter-of-factly turned to her yoga class and thereby modernize the one day and said “Nancy, I think it’s time image of Bar Chancellor.” Aronchick you went out on your own.” So, Nancy says “Nancy Hebble was a jewel in a made her way to Philadelphia, where she star-studded staff that helped me and our had relatives—an aunt and uncle living in Bar Association accomplish great things nearby South Jersey. during an important time for Philadelphia When we first met in the early lawyers.” 1980s, Nancy was working at the Legal David Grunfeld, who served as Intelligencer, where she honed her editor-in-chief of the Philadelphia Bar editorial skills under the direction of a Reporter and later The Philadelphia seasoned pro—an older woman who Lawyer, saw Nancy as “the consummate taught her everything from sentence expert at editing articles, laying out structure to how to hold and properly use issues, choosing graphics and photos, a pair of long-blade office scissors, the and balancing each issue with substantive type used to clip newspaper columns. And and lifestyle material.” And former if you improperly used any pair of scissors Philadelphia Lawyer editor-in-chief Steve (or any other instrument, for that matter), Sher notes that “most, if not all, of the Nancy would correct you. The same was It was a breathtaking period— magazine’s awards were under Nancy’s true if you misused or mispronounced a right up until 2001 when Nancy left the aegis.” word. Association to put her talents to work Nancy never married and had no Nancy Hebble was exacting. Plus, elsewhere. If you brought Nancy a children, so the publications really were she had an extraordinary eye not just for manuscript that was giving you trouble, her offspring, and she could be quite detail but for everything else. She was she could quickly pinpoint the problem proprietary about the final product. When highly discriminating. Along with this, and correct it for you. If you showed her the redesigned magazine was introduced she brought a Midwesterner’s practical, hundreds of photos from an Association with the new moniker The Philadelphia common-sense approach to her work. event, she could instantly find and crop the Lawyer, the launch party was a full-on When we hired Nancy to oversee one or two worthy of publication. If you Nancy event. the Philadelphia Bar Association’s brought her a headline that you thought But Nancy’s work was hardly limited publications, we must have been was perfect, Nancy might brusquely to the publications. Former Chancellor looking for precisely that combination pronounce it awkward and then proceed Mary Platt was impressed with Nancy’s of attributes, even if we were not fully to improve it. “dedication to the advancement of aware of it at the time. We were then on As former Chancellor Abe Reich women in the legal profession.” She the cusp of the greatest period of sustained remembers: “Nancy was one of a kind; says “Nancy helped launch the Women membership growth (what Nancy and I very bright, very direct and quick to judge. in the Profession Committee in 1986 and came to call the “boom-boom” years) in But when she blessed a project or written devoted much of her time to serving as the the Association’s history. product, you knew you had a winner. I staff member assigned to the Committee.

the philadelphia lawyer Summer 2020 13 Though Nancy was hardly the first to arrive at work in the morning, she was often among the last to leave. Consequently . . . Bar leaders knew they could confide in her even after normal business hours. And Nancy didn’t hesitate to cultivate her own following.

Nancy worked tirelessly with Committee workshops. There were bumps along the On one occasion, we reminisced so chairs, Committee members, and other way. And, as with any such longstanding long and laughed so hard that we hardly Bar leaders to support the advancement professional relationship (particularly in noticed we were the last luncheon guests of women lawyers in the legal profession. a highly charged creative atmosphere), left in one of the city’s most popular She also helped the Committee create time and the rigors of the job took their eateries. the Sandra Day O’Connor Award and toll. Consequently, after she left the Bar The last time I saw Nancy, she encouraged active Committee members Association, we lost touch. I suppose we apologized for not looking her best. I to chair the Women in the Profession needed a breather. brushed that aside as I sensed she was Committee and later become Chancellors But we reconnected a few years ago not in the best of health. But she was a and other leaders of our Bar Association.” and started meeting every so often for very private person, and I dared not pry. Though Nancy was hardly the first to lunch. At these sessions, long separated We proceeded as normal and the laughs arrive at work in the morning, she was often from the stresses and pressures of work, simply continued. among the last to leave. Consequently (in we recalled only the good times. And each Looking back on it, I’m grateful that I an era before the widespread use of cell lunch became a new and more extended can now remember it all with a smile and phones), Bar leaders knew they could laugh fest. a chuckle. confide in her even after normal business hours. And Nancy didn’t hesitate to cultivate her own following. Former Chancellor Frank Devine remembers Nancy speaking “softly and gently but bluntly.” He says Nancy “had a talent for sizing up people and circumstances,” and adds that “almost always, she was right.” Devine reports that Nancy welcomed any new adventure and “could take equal pleasure spending an evening with the orchestra in the Kimmel Center as she could from a fight night at the Blue Horizon, or a Rod Stewart concert at the Spectrum.” And he adds that while Nancy “did not always wear a smile, when she did, she lit up the room.” Few knew Nancy better than former Pennsylvania Bar Association President Leslie Miller, who was Nancy’s friend for more than 30 years. “Our work together spanned my involvement in both the Philadelphia and Pennsylvania bar associations and the Kimmel Center,” Miller explains. “Nancy was a gifted and hardworking professional who set a standard of excellence for herself and all that she did. She had the highest integrity, great good humor, and strong loyalty to those she called friends. I was fortunate to be among those and will treasure the memories of her.” Nancy Hebble and I worked very closely together, logged countless hours, and travelled extensively to professional conferences where we jointly presented

14 the philadelphia lawyer Summer 2020 “Nancyisms”

Make yourself useful. Nancy’s Pink or green. Nancy’s theory of how Crooked little house. The way Nancy oft-repeated admonition from her faces would print when photographed. described her home up the hill and on grandmother. It encapsulated Nancy’s Light or sallow complexions were pink; the border between Roxborough and approach to life. dark or ruddy complexions were green. Manayunk. The house was actually two Nancy insisted she could see the pink or small homes connected to one another. Best food in the city. Nancy’s green. description of meals at the Union League where she enjoyed being the guest of Wait broke the wagon. Another one Dan Cirucci, a colleague of Nancy Hebble, members. She liked basic dishes, simply from Nancy’s grandmother. It expressed served as Associate Executive Director for prepared. Nancy’s frustration with almost anything Communications and Public Affairs at the that tested her patience. Philadelphia Bar Association for 28 years. Found On the Road Dead. Nancy claimed this is what each letter in the Lying sack of s - - t. Nancy’s word “Ford” stood for. She was not a fan dismissive description of anyone she felt of Ford vehicles. deceived her.

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the philadelphia lawyer Summer 2020 15 A WARRANT FOR THE WOODSMAN By Steve LaCheen Image by Mona El Falaky from Pixabay

represented a woodsman once. I never knew exactly how he had when they needed a passport to get into our become the steady suitor of the sister of a client of mine, but it Courthouse.” That drew a laugh from the was clearly a case of “opposites attract,” as she was a sophisticated captive assembly. urbanite,I and he was as much the taciturn, rough-hewn backwoodsman as “Most times now,” the judge Gary Cooper pretended to be. Wayne Reed was his name; from Vermont continued, “out-of-towners trust their cases to Chester County lawyers, so it’s nice to he came. He was a cook and a whittler of wooden whistles shaped like be able to see a new face sometimes. What, birds, and pipes shaped like kites because they could make you feel like then, is your client’s pleasure?” you were flying. “We are prepared to proceed with a motion to suppress evidence whenever Wayne lived in the far reaches of rural four terms of Court during the year; and the Court sets the matter for hearing,” I Chester County, where he whittled his the protocol was that every lawyer in every responded. wooden birds while cooking up batches case was required to appear for the Call of “Well, if there is that level of lawyering of methamphetamine for his girlfriend’s the List by the President Judge on the first coming our way, I want to be the judge brother in Philadelphia. Unfortunately day of the new term of Court. The Judge that learns something from an erudite for Wayne, his secluded aerie was not as would call the list, and the attorneys in each Philadelphia Lawyer; so I will list this private as he had thought, and word of his case would advise the Court of the status of matter for suppression hearing two weeks activities eventually came to the attention their case; that is, whether the case was to from today at 9:00 a.m., unless, of course, of the local law enforcement authorities, be a guilty plea; or given a date for trial; or, starting at that time will create a hardship who obtained a warrant to search the in most cases, to be scheduled for pre-trial for counsel.” premises. Execution of the search warrant motions or just passed to the next term of I declined to take the bait and assured produced none of the expected product, court. the Court a 9:00 a.m. listing was no only residue from previously completed Being from Philadelphia, I was, of problem. efforts. Disappointed, but undaunted, the course, a stranger in those precincts; and “We will see you then; and you are police arrested Wayne anyway, and his case the judge, D.T. Morrone, asked me to excused until then,” said the Judge. soon found its way on the Criminal Trial introduce myself to the members of the I believed I had an open-and-shut List in Chester County. local bar in attendance, about 20 attorneys. successful suppression argument which As in many Pennsylvania counties, the He then welcomed me to Chester County. was plain on the face of the search warrant. Chester County Court of Common Pleas “We don’t see many Philadelphia lawyers The officer executing the warrant had operated on a calendar that recognized out here, although more now than before crossed out the address on the warrant of

16 the philadelphia lawyer Summer 2020 The Court asked if there were any exigent circumstances that would have justified a warrantless search. There were none, the prosecutor admitted, as the officer’s report recounted that Mr. Reed had been sitting on the porch, whittling away when the officer arrived, and had made no effort to hide, or destroy evidence, or even make a furtive move.

the premises to be searched, which had undergone a sea change. beer. originally read “106” Tree Lane, changing “O.K.,” he said, with a slight smile, “Nice work, young man,” he said, and the address to read “109” Tree Lane. “The Court appreciates the patience of I thought he was making fun of the judge, Apparently, upon arriving at the property, both counsel, and we will proceed without but he was serious. he noticed the address was 109 Tree Lane further delay. Counsel for the Defendant, “I ain’t sure exactly what happened in and not 106 as designated on the search it would be helpful, if you wouldn’t mind, there, but I know my case is over. I don’t warrant as the property to be searched. to provide the Court with a summary of get what that judge meant by ‘corrective Rather than return to the Magistrate to your argument; perhaps it will moot the editing.’” obtain an official correction of the warrant, necessity to have a full evidentiary hearing, I explained again why it was wrong for he had simply made the change to reflect if the facts are not in dispute.” the officer to have altered the address in the the address of the property he would I summarized the facts, being careful warrant. actually search. not to exaggerate or overstate them; and “Because he searched the wrong The problem with that, of course, was handed up a copy of the search warrant, house?” that it was only a “neutral and detached which clearly showed the alteration of the “No,” I said, “because he changed the magistrate” who had the authority to issue, address of the property to be searched, from address on the warrant to conform to the or amend, a search warrant; and I was 106 to 109. The Judge asked the prosecutor address of the property he was actually certain that the officer’s assumption of if he intended to put on evidence that going to search.” an authority to which he was not entitled would contradict my representations that “But he really didn’t,” said Wayne. would require a finding by the Court that the warrant had been altered by the officer. “What do you mean ‘he really the warrant was invalid, and, unless there The prosecutor declined the opportunity didn’t?’” I asked. “Of course, he did. He existed circumstances which would have to do so. The Court asked if there were changed ‘106’ to ‘109’ when he saw the justified a warrantless search—which I was any exigent circumstances that would address on the door.” certain was not the case—the fruits of the have justified a warrantless search. There “No,” said Wayne, “he didn’t. The search would have to be suppressed. were none, the prosecutor admitted, as the correct address is 106. It just looks like As sure as I was, however, I did officer’s report recounted that Mr. Reed ‘109’ because the nail got loose and the ‘6’ the research anyway, and drafted an had been sitting on the porch, whittling swung upside down. It just looked like ‘9,’ appropriate Memorandum of Law for the away when the officer arrived, and had but it’s a ‘6.’” Court. Unfortunately, I was unable to find made no effort to hide, or destroy evidence, “So, he changed the warrant when he a Pennsylvania case “on all fours,” as we or even make a furtive move. didn’t have to?” used to say, but I found support for my “Well,” said the Judge, “I guess that’s “Yup.” argument in analogous federal appellate all she wrote. I don’t need the Supreme “Didn’t he ask you the address?” opinions. Court to tell me that little corrective editing “Yup.” On the day set for hearing, I traveled violates the Pennsylvania Constitution. “Well...?” to West Chester, arriving before 9:00 a.m., Motion granted. Does the Commonwealth “He asked me the address, and I just only to learn that the Judge had scheduled want a continuance to consider an appeal?” pointed to the numbers. I never said a an emergency injunction hearing which The prosecutor said that would not be word.” was already in progress. That hearing necessary and moved to dismiss the case. I raised my glass. Wayne raised his, concluded right before noon, and the Judge I objected to dismissal unless it tapped mine. declared a recess until 2:00 p.m. would be “with prejudice,” failing which “Nice work, counselor,” he said. When court reconvened, whether I moved for trial. Motion granted. The “Thank you, Your Honor,” I replied. it was because ours was the only case in Commonwealth rested. Verdict: Not the Courtroom and the Judge had no other Guilty. As he was leaving the bench, the audience, or because Wayne and I had sat Judge said, “Nice work, young man. Come Steve LaCheen (slacheen@concentric. through the entire morning proceedings back any time.” net), a partner with LaCheen, Wittels & with obvious interest (and no signs of Wayne and I left the courthouse and Greenberg, is a member of the Editorial impatience), the Judge’s demeanor had walked around the corner for a celebratory Board of The Philadelphia Lawyer.

the philadelphia lawyer Summer 2020 17 Before Stonewall:

Philadelphia’s ‘Annual Reminders’ of the 1960s Photo by Markus Spiske on Unsplash

By Patrick McKnight

to customers it felt challenged existing ast year marked the 50th anniversary of the June 1969 Stonewall gender norms. Three of the teenagers who Riots in New York City. This event is widely remembered in popular helped organize the protest were arrested. culture as the beginning of the modern LGBTQ rights movement. Clark Polak, president of the Janus Society, However,L several years before 1969, activists in Philadelphia were already offered to help obtain a lawyer for the three teenagers. He was also arrested and hard at work making important strides for the rights of the community. charged with disorderly conduct. Unfortunately, this groundbreaking work is often overlooked. The Janus Society was founded in Philadelphia in 1962. Its monthly It’s somewhat easy to forget how much progress has been made magazine, DRUM, was one of the earliest LGBTQ publications towards LGBTQ equality in just the past 20 years. Philadelphia in the country. DRUM may have been the most popular LGBTQ has played a critical role. As is so often the case, the city served publication in America during the 1960s. as a focal point for larger discussions about civil liberties and the For five days, members of the Janus Society protested and proper role of government. Philadelphia’s unique legacy presents distributed literature outside the restaurant. A second sit-in on May a backdrop where the egalitarian principles of America’s founding 2, 1965, also led to denials of service but no arrests. can be contrasted against modern inequities. Many of the details and identities involved with the Dewey’s The pre-Stonewall LGBTQ rights movement illustrates an Sit-in remain unclear. However, this event helped lay the foundation important chapter in Philadelphia’s history. This article discusses for another historic protest just a few months later. selected events and leaders from this period. Annual Reminders at the Liberty Bell Dewey’s Sit-in Between 1965 and 1969, local LGBTQ activists marked the On April 25, 1965, a historic sit-in began at Dewey’s Lunch Fourth of July by holding “Annual Reminders” in front of the Counter on 17th Street near Rittenhouse Square. Dewey’s was Liberty Bell. Many historians consider these protests the first of a restaurant chain with several locations in the Philadelphia their kind in the country. The protests both celebrated American area. The business apparently had a policy of refusing service ideals while attempting to remind the general public those ideals

18 the philadelphia lawyer Summer 2020 Philadelphia has been instrumental in both the civil rights and

LGBTQ movements, and this history deserves to be remembered. remained unfulfilled. age regulations shall be made for this list. However, one of the most influential is The demonstrators focused on demonstration. Barbara Gittings. employment issues and wore suits or We also propose that we contact Barbara Gittings moved to Philadelphia dresses. The organizers had strict rules for Homophile organizations throughout the when she was 18 and lived here until her the conduct and appearance of participants. country and suggest that they hold parallel passing in 2007. She helped organize the In 1965, demonstrators believed demonstrations on that day. We propose a Annual Reminders and countless other “respectability” was important to win the nationwide show of support. events. hearts and minds of the public. No public Gittings has been described as, “the displays of affection were permitted under Local Leadership Rosa Parks of the gay and lesbian civil the rules. rights movement.” Among her other In late June 1969, the Stonewall Riots The list of local leaders who played accomplishments, she was instrumental in in New York City marked an inflection critical roles in the movement is too long to having homosexuality removed from the point for the LGBTQ movement. Diagnostic and Statistical Manual of The last Annual Reminder has held mental disorders in 1972. In 2012, just a few days later. Stonewall Philadelphia named a section of also marked a shift towards a more Locust Street “Barbara Gittings Way” radical approach in tactics. The in her memory. old model of “respectability” no longer seemed appropriate to many Conclusion demonstrators. In 1970, many of the local Philadelphia has a rich legal organizers of the Annual Reminder history. In a sense, the founding helped launch the Christopher of the nation is so monumental it Street Liberation Day event in can overshadow our subsequent New York City. Some historians accomplishments in the popular consider this the first pride day imagination. This is understandable parade in the United States. but unfortunate. Philadelphia has been This choice was made in instrumental in both the civil rights Philadelphia at a November 1969 and LGBTQ movements, and this meeting of the Eastern Regional history deserves to be remembered. Conference of Homophile Philadelphia in the 1960s was Organizations (ERCHO). ERCHO a melting pot of legal activism. This released the following statement period in Philadelphia history holds about the decision: important implications for 2020 as That the Annual Reminder, in Philadelphia attorneys and activists order to be more relevant, reach continue to shape the national dialogue a greater number of people, and about legal equality and individual encompass the ideas and ideals of rights. the larger struggle in which we are This is a long, proud Philadelphia engaged—that of our fundamental tradition that deserves to be continued. human rights—be moved both in time and location. We propose that a Patrick McKnight is an associate at demonstration be held annually Klehr Harrison Harvey Branzburg on the last Saturday in June in LLP in Philadelphia, Pennsylvania. New York City to commemorate the 1969 spontaneous demonstrations on Christopher Street and this demonstration be Barbara Gittings picketing Independence Hall as part of called CHRISTOPHER STREET an Annual Reminder on July 4, 1966. © Kay Lahusen, Equality Forum LIBERATION DAY. No dress or

the philadelphia lawyer Summer 2020 19 Philadelphia Lawyer Changes Her “Focus”

Image by Angeles Balaguer from Pixabay

*This essay was written in 2010. All references to time are relevant to that year.

ommuting to New York City from Philadelphia is a trek—190 miles round trip and a total of four hours travel time. It was this four-hour daily commute which occasioned a life-altering career Cchange for Philadelphia attorney Eileen Kennedy.

Thirteen years ago, while Kennedy during many hours spent on the train goals no longer defined her days. After was an attorney with Bell Atlantic’s commuting to and from New York City, spending time reflecting, it came to her legal department specializing in Kennedy began to question whether she that she alone was responsible for creating international tax law, the company wanted to continue to practice law or a rich and fulfilling life. Expanding on moved its headquarters from maybe do something else. She began to this realization, her existing interest in Philadelphia to New York City. Other wonder whether hers was the life she photography gradually developed into multi-national corporations were also wanted to live. something much more. leaving Philadelphia at that time, and In the fall of 1998, Kennedy informed Kennedy earned her bachelor’s degree Kennedy did not find many meaningful Bell Atlantic that she was departing. After at Georgetown University where she opportunities to apply her experience leaving the company, Kennedy lived in studied French and Linguistics. Unlike in international tax law anywhere else what she described as a “neutral zone.” many lawyers, she did not go straight in Philadelphia. Over several months, Client demands and organizational from college to law school. Instead, she

20 the philadelphia lawyer Summer 2020 Changes Her “Focus”*

By Mary-Kate Martin

spent two years in the Peace Corps from out of more than 16,000 submissions in the Denver airport. She recently 1974-1976. She was stationed in Burkina from around the world, Heim asked the returned from photographing one of Faso in French West Africa where her curator what makes Kennedy’s art so Philadelphia’s sister cities in Torun, interest in international issues and interesting. The curator explained to him Poland, having been selected to do so foreign cultures blossomed. While in the that Kennedy’s photographs are “visual by the Philadelphia International Visitor Peace Corps, Kennedy submitted her law metaphors” because they “combine her Center. school applications, and upon her return analytical skills with her creative talent.” When asked whether there is stateside, she enrolled at The University Her best images suggest a message to the anything that she misses about being a of Chicago Law School. viewer but not overtly. At the same time, lawyer, Kennedy fondly remembers the Kennedy began taking photographs they are “enjoyable to look at” and are individuals with whom she worked early after law school. She took a few isolated “technically superb.” in her career. “I still benefit from an photography classes, which helped to While Kennedy takes photographs exposure to law through my husband,” further develop her interest. Otherwise, for family and friends to celebrate events said Kennedy. She still enjoys discussing during the early years of her growing or memorialize family get-togethers at legal problems with him. hobby-turned-career, she was largely self- their summer home in Maine, she limits Kennedy gets pleasure from taught. As her passion for photography that type of work to the people who are setting and achieving her own goals, progressed, she attended Maine Media important in her life. Otherwise, she and not having to answer to other workshops in Rockport, Maine, as well focuses her photography on projects people. Reflecting back on her life, as classes at the International Center for that are meaningful to her. “I search for she recognizes that for many years, Photography in New York City. themes and ways to express themes,” she particularly while she was in school, she Looking back, Kennedy wishes she said. became accustomed to using external had been taking photographs during Currently, she is exhibiting a series validation as a way of measuring her her time in Burkina Faso. She would based on her husband both as an success. Having to define her own have liked to have those memories individual and a sort of “everyman” for accomplishments is a challenge to her, documented in film. But Kennedy does the successful professional who, despite but with that challenge comes a welcome not look back, she looks forward. She growing older, has maintained his freedom. “When you are working for does not spend time pondering “what prowess and influence but is nonetheless yourself and defining your vision, you ifs” and instead trusts the decisions she re-examining the role of work in his have to determine success on your own.” has made and focuses on her passions. life. While she acknowledges a certain Looking back and reflecting on her Her passion, drive, and natural sense of level of intimacy to this project, she transition, Kennedy mused, “I don't forward movement, that advanced her also believes the theme is increasingly presume to give advice to others, because through a successful legal career, has common, as baby boomers reach the age everyone's life is complex in different likewise ferried her through a booming of traditional retirement and begin to ways. My experience just confirms the career in photography. wonder about “what to do next.” truism that it's important to take the time Originally from Toledo, Ohio, Using photographs of her husband— to reflect on the direction of your life Kennedy came to Philadelphia after she “Bob as an individual and as an because it does go by in a blur.” graduated from law school in 1979 and everyman”—Kennedy won first place began working as an associate with the in an international biannual competition [Readers are encouraged to view tax department of Dechert LLP. It was that will culminate in a solo show next Kennedy’s photographs by visiting there that she met her husband of 25 year at the Museum of Photography in www.eileenkennedy.com] years, Robert C. Heim. Heim is head Thessaloniki, Greece. Most recently, this of the Litigation Department at Dechert series was exhibited at the Dublin Gallery LLP in Philadelphia and is a former of Photography in a group show called Mary-Kate Martin is a deputy city Chancellor of the Philadelphia Bar “Prime Years,” which features about solicitor with the City of Philadelphia Association. seven other photographers worldwide. Law Department. Heim has great admiration for his Additionally, Kennedy has wife’s bold career transformation. While photographs in the permanent collection attending the Art of Photography Show of the Center for Fine Art Photography in San Diego, an annual event that selects in Colorado, which will be including and exhibits only 100 photographers her work in their upcoming installation

the philadelphia lawyer Summer 2020 21 ““YouYou LostLost ThatThat LovingLoving Feeling”Feeling” NNowow HowHow DoDo YouYou SeverSever YourYour FFinancialinancial TTiesies

Photo by Markus Spiske on Unsplash

BByy JulieJulie A.A. AuerbachAuerbach

tion agreements, which clearly set forth the roken hearts may not be the only fallout from the breakup of an rights and obligations of each person. But unmarried couple. The severing of these romantic ties may also more likely than not, most of these couples have not entered into cohabitation agree- have financial consequences. Untangling jointly held assets, B ments. such as real estate and bank accounts, are common byproducts of failed So what options are available? As relationships. If there is a broken engagement, disputes may arise over who there is no all-encompassing law akin to keeps the engagement ring. Payment of credit card debts and sharing of the divorce code, each area of dispute must be addressed separately. pets are other concerns that may become areas of disputes. And what about Jointly held real estate must be divided palimony, is it still a thing? by partition, a lengthy and expensive process. It involves a two-part process; part 1 is a partition of the parties’ legal interests There is no unified statutory law es- als must resort to general contract law, such into severalty. Part 2 divides the property tablishing the rights and obligations of as unjust enrichment, promissory estoppel, between the parties by requiring one party unmarried couples to one another when conditional gifts, and partition actions. The to sell their interest in the property to the financial disputes arise. Instead, individu- lucky few may have entered into cohabita- other party or requiring the sale of the

22 the philadelphia lawyer Summer 2020 BBecauseecause therethere isis soso littlelittle lawlaw toto protectprotect unmarriedunmarried couples,couples, thesethese iindividualsndividuals oftenoften walkwalk awayaway fromfrom suchsuch disputes,disputes, andand oftenoften atat greatgreat financialfinancial ssacrifice.acrifice.

property and distribution of the proceeds money to the joint account, the other per- claims of promissory estoppel, unjust en- between the parties. son has to establish by clear and convinc- richment, and quantum meruit. As in par- Special consideration may be given if ing evidence that the money in the account tition actions, such civil suits are lengthy one of the individuals supplied the down is a gift to that person and therefore should and expensive. Enforcement of any judg- payment to the real estate. In McGoldrick be shared equally. Litigation on this issue ment obtained could be a major concern if v Murphy, ---- A.3d ----- (2020), the per- could very well result in a he said/she said there are no assets to secure the payment of son who supplied the down payment on the dispute, requiring the court to decide who the judgment. residence made a conditional gift which is more credible. What about promises made by one was contingent on the occurrence of a mar- Pets are near and dear to many of us, person to provide financial support to the riage, and because a marriage did not oc- but despite the emotional connection indi- other, such as palimony? In Knauer v. cur, the person who supplied the down pay- viduals have towards pets, Pennsylvania Knauer, 323 Pa.Super. 206, 470 A.2d 553 ment was entitled to reimbursement of it. law considers pets to be personal proper- (1983), the Court found that claims can be The court was not swayed by the argument ty, 3 P.S.Section 459-601 (a). In Desanc- raised under theories of express or implied that gift letters were executed. These letters tis v. Pritchard, 803 A.2d 230 (2002), the contracts and quantum meruit. were only executed to obtain the mortgage. former husband and the former wife had Knauer discussed the seminal case of Instead, the court found that the sole pur- previously entered into a marital settle- Marvin v. Marvin, 18 Cal. 3d 660, 134 Cal. pose of the gift was to purchase a home ment agreement which awarded Barney, a Rptr. 815,557 P. 2d 106 (1976), a Califor- for the parties to live as husband and wife. dog purchased during the marriage, to the nia case involving the actor Lee Marvin. Since the marriage did not occur, the down former wife. The agreement provided that There the court held that providing person- payment was no longer a gift. former husband was permitted to visit with al non-sexual services, such as homemak- The law of conditional gifts was also Barney. When former wife denied former ing, companionship, housekeeping, and applied to the return of an engagement ring husband the right to visit Barney, former cooking, suffice to constitute consideration in Lindh v. Surman, 742 A.2d 643, 560 Pa. husband filed a complaint in equity against for an oral contract to support that person. 1 (1999). An engagement ring is a gift con- former wife seeking shared custody of Bar- The Marvin decision stated that “there is no tingent on the occurrence of a marriage. ney. The former wife filed preliminary ob- more reason to presume that services are Title to the donee vests only upon the mar- jections and the complaint was dismissed. contributed as a gift than to presume that riage. If the marriage never occurs, the do- On the appeal to the Superior Court, the monies are contributed as a gift and there is nor is entitled to the return of it. The Court court found that to the extent the parties’ a presumption that the parties intend to deal specifically noted that its holding was to agreement attempts to award custodial visi- fairly with one another.” apply without regard to who was at fault tation with personal property that portion Knauer held that agreements between for the termination of the relationship. If a of the agreement is void. The court went unmarried individuals fail only to the ex- fault-based principle was adopted, parties on to state that the relief being sought by tent that they involve payment for sexual would be required to portray ex-fiancées former husband was akin to seeking a visi- services. Further, the agreements may be in the worst possible light. Further, deter- tation schedule for a table or a lamp! express or implied. mining fault is not always clear and easily A particularly difficult dispute to re- Because there is so little law to protect ascertainable. Just as most states have ad- solve is the payment of jointly created unmarried couples, these individuals often opted a no-fault divorce statute, a no-fault debts, such as credit card debt, especially walk away from such disputes, and often policy for broken engagements should ap- if the debts are held in only one person’s at great financial sacrifice. Litigation costs, ply as well. name. The credit card company does not uncertainty in the law, and slow-moving If there are joint bank accounts, they care who created or benefited from the litigation often deter an individual’s will- will have to be divided. Based upon the debt. As far as it is concerned, the person ingness to pursue claims in court. multi-party accounts section of the Dece- who applied for and received the credit Cohabitation agreements are a way to dents, Estates and Fiduciaries Code, 20 card is responsible. For example, if an un- define the financial aspects of an unmarried Pa.C.S.A. 6303, during the lifetime of the married couple uses a credit card for joint relationship and to limit the possibility of parties, the money in the joint account be- expenses but the credit card is only held in disputes in the future. Marriage is always longs to the parties in proportion to the net one person’s name, there is no defense to an option, too! contributions by each, unless there is clear collection of the debt on the basis that the and convincing evidence of a different charges made were for the benefit of some- intent. One can imagine the disputes that one other than the cardholder. Julie A. Auerbach (JAuerbach@astor- could arise over the “intent” of the parties But can the cardholder seek recovery weiss.com) is a partner at Astor Weiss Ka- as to any division of monies in a joint ac- from the other individual? A civil suit for plan & Mandel, LLP. count. If one person contributed all of the recovery of debts could be filed, raising

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ne summer day, as I performed my support of hundreds of individuals and organizations worldwide, including law firms, firm partners, their morning ritual of perusing The Legal clients and some of the world’s largest arbitration Intelligencer, Philadelphia’s legal institutions.” The pledge formally titled “The Equal O Representation In Arbitration Pledge,” was launched newspaper, a headline (below the fold, of in London with 300 signatures, which grew to over course) caught my eye. It loudly proclaimed: 1,000 in one month alone. As someone who has been striving to reinvent “Pledge to Name More Women as Arbitrators her 20th-century self to the needs of the 21st-century Reaches U.S. Law Firms.” ADR community at The Dispute Resolution Institute, this was very encouraging news. At least the problem Being a woman, an ardent feminist, and an arbitrator, I was being identified and a game plan was being put immediately deserted the top headlines and zeroed in on the into place. Then my skeptical self took over. A pledge is really arbitration story. nothing more than a sign of good intentions. It is not a rule or While the thrust of the article revolved around women a requirement. as international arbitrators, the central issue was, to me, as Between the lip and the pen, a lot can happen. However, relevant in Philadelphia as I am sure it is in London, Paris or it got me thinking about the status of women in ADR. In my Tokyo. It led off with the discouraging news that women are zeal to reinvent myself from a jurist to an ADR professional, I “dismally represented” as international arbitrators. “In some never focused on the fact that I am a woman and the majority cases, less so than law firm partnerships and the judiciary.” I of distinguished neutrals are men. Of course, not exclusively guess the reporter has not recently checked out the status of men, but if you add up the numbers, we are woefully women judicial leaders in the Philadelphia court system. outnumbered. However, the news brightened as “a pledge aiming to This realization led me to once again ponder the current increase the number of women arbitrators has gained the state of women leaders in law firms as I spent most of my

24 the philadelphia lawyer Summer 2020

If women do not support each other, we will simply perpetuate the judging years advocating for more equal schedule. the old girls’ network as common as our representation of women attorneys beforeinequalities We have of come the far 20thsince the Century.1970s counterparts’. me. I devoted my remarks to that subject when my feminist friends and I marched, Retired New Jersey Superior Court when accepting the Philadelphia Bar picketed, and lobbied for passage of the Judge, The Hon. Marina Coredemus, who Association’s Sandra Day O’Connor Equal Rights Amendment. However, we is a prominent distinguished neutral, put it Award in 2014, and in my work at Temple have not come far enough—not by a long very well when she emailed the Women’s Law’s Sheller Center for Social Justice, shot. In the law firm community, as well Mass Tort Bar in response to The Legal where we did a study in 2016–2017 on as in the ADR community, there is still a Intelligencer’s “Pledge” article. She the status of women attorneys as leaders football field of room for improvement. wrote: in complex litigation nationwide. And, while I applaud the creation of “This article echoes the inherent bias Regarding the Temple project, our The Equal Representation in Arbitration by men and women to select male ADR preliminary statistics were troubling. As Pledge, I state strongly that it is not professionals. May I suggest awareness of 2017: enough to just pledge. The movers and of your members to affirmatively hire a) Women still comprised only 18% shakers who select ADR professionals, women ADR professionals is an idea that of equity partnerships; both men and women, need to bite the should be recognized and implemented.” b) The typical female equity partner bullet to not only pledge, to not only Way to go Judge Coredemus!!! earned 80% of what a typical male equity make a concerted effort, but to actually The bottom-line truth remains that I partner earned; select women as mediators, arbitrators, cannot reinvent myself into somebody I c) Women were underrepresented and special masters. am not. So, if I cannot reinvent myself, on compensation committees and as Women attorneys, corporate I will work diligently to reinvent the rainmakers; CEOs, and insurance executives need system. d) Women comprised only 44% to think outside the box when it comes However, this is not a one-woman of associates at all levels, which may to selecting an ADR professional. If job. We—both men and women—must suggest that women may be turning to women do not support each other, we work together. We must do a better job other professions; and will simply perpetuate the inequalities of mentoring. As my mentor, The Hon. e) Even more distressing, of the 20th Century. We have all heard Judith Jamison once said: despite years of research and articles of the old boys’ network. We have all “I pulled you up. Now you have to demonstrating the benefits of flexible been faced with guys looking after guys pull at least two women up behind you.” work arrangements, there were still top when it comes to plum assignments and I promised I would, and I have tried law firms that did not permit women to promotions. As women, we need to look to honor that promise tenfold. If we all advance if they were on a reduced-hours after each other as well. We should make diligently work to pull one young woman up the corporate ladder, whether it is litigation or ADR, what a difference we can make! With the first woman presidential candidate from a major political party winning the popular vote in 2016, with a record number of women elected to Congress in 2018, with more women being appointed to the Federal Bench each year, and with the possibility of a woman Vice President of the United States in 2021, it does not seem all that much to strive for equality for women lawyers here and everywhere, whether they are litigators, negotiators, or neutrals.

Hon. Sandra Mazer Moss (Ret.) is a Distinguished Neutral at The Dispute Resolution Institute. Image by Markus Spiske from Pixabay

the philadelphia lawyer Summer 2020 25 Lessons Offered, Learned in Kenya

By Kyla Rivera-Smith

This essay was written in 2011. Dates and periods of time mentioned are relative to that year.

ride to D. C.’s Dulles airport, then a 12- hour flight to Ethiopia, followed by a two- hour layover, and another two-hour flight, pring break for graduate students is usually we FINALLY touched down in Mombasa. synonymous with drinking, partying, We were greeted at the airport by our host Jacob Boaz, palm trees, and beautiful blue lounging on the beach, and more drinking. skies, and an overwhelmingly suffocating SAs I fast approach 30 years old with only one heat that I never fully became accustomed to. more year of law school to go before I’m thrown Penn students became acquainted with back into the workforce, I decided that this year I Jacob last year through his partnership with A Broader View, a Philadelphia-based non- wanted to do something meaningful with my spare profit that provides funding and supplies to time, so I joined my school’s Black Law Student’s the Destiny Garden School. Coincidentally, last year was also the first year that major Association on our annual service trip. changes to Kenya’s Constitution, many of which significantly increased women’s rights, including a new Bill of Rights, went into effect. Although the 2010 Kenyan I traveled with three other students to go to Africa. I had no idea that I would have Constitution provided women with many Mombasa, Kenya for 11 days. I have to ad- so many invaluable experiences or make so new rights and established them as equal mit, I initially signed up for the trip because much of an impact on such a short trip. citizens in the eyes of the law, the aver- it sounded like a great way to mix business Our journey began at 4:30 a.m. on the age Kenyan woman was ignorant to these with pleasure, and I’ve always wanted to day of our departure. After a two-hour train changes or, at the very lest, what it meant

26 the philadelphia lawyer Summer 2020 We did research prior to our trip on women’s rights in Kenya, but no amount of background reading could have prepared me for the sheer magnitude of the disparities between men and women in Kenya, even after new laws have been enacted.

for her. There’s also significant resistance, borhoods where an entire family sleeps them the same rights as their husbands. particularly by men, to acknowledge these on a dirt floor in a one-room home of ply- Similarly, spousal abuse and rape are ram- new laws, and conflicts with local village wood nailed together, and these men have pant in Kenya, and the old laws are unclear and community traditions and Kenyans a private pier, speedboats, and jet skis! The about legal remedies for wives in such situ- being resistant to denounce longstanding wealth gap between the rich and the poor ations, so we felt the need to educate the traditions. Our group’s mission on this trip in America pales in comparison to the one women concerning this type of relief. was to address both of these issues through in Kenya. I was even more surprised by When we arrived at the church where education and better understanding of how the men’s attitudes towards the struggles the forum was being held, we were greeted Kenyans can peacefully coexist in a variety that their country faces. I couldn’t help but by Millicent, along with 27 women eager of settings. wonder, perhaps unfairly, if they felt any to hear what we had to say. After a brief in- In preparing for our trip, we had not sense of responsibility to help those starv- troduction, during which we explained our accounted for the unexpectedness of many ing around them. Their attitudes toward the purpose for being there and what we hoped of the events that occurred during the week, matter seemed to be that change will be to get out of the discussion, we jumped in part due to the laid-back attitude of the slow and painful but will eventually hap- right into our lesson. During the presenta- Kenyan people, and in part due to how pen. At one point during dinner, I asked tion, we explained how the new Constitu- well-connected and well-respected Jacob them what some good investment opportu- tion provides many gains for Kenyan wom- was on the Mombasa political scene. We nities in Kenya were. Their response was en that are contingent upon their desire to quickly discovered that we had to be very “Pretty women like you, girls, would be pressure society and the court system to flexible with our schedules and be ready at best suited to marry a rich husband.” Their protect their newly created rights and privi- any time for the possibility of impromptu attitude toward women’s roles in society, leges. Our main areas of focus were the su- interviews or protests. Throughout the even as they just voted in favor of women’s premacy of the Constitution over any and week, Jacob was able to arrange meetings equality rights, was very surprising. all contradictory customary, religious, and for our group with some of Kenya’s most Having missed the women’s rights cultural laws; a discussion of the changes powerful people, including a principal movement in the United States by about a in current marital and property laws, and magistrate judge at the lower court level, century, I admittedly was somewhat igno- a brief discussion of how women can be a magistrate of the High Court, and two rant to the severity of the gender inequalities more involved in social entrepreneurship members of Parliament. These meetings, that Kenyan women face. We did research and environmental sustainability; the av- in addition to being extremely informative prior to our trip on women’s rights in Ke- enues through which women can pursue le- for our group in helping us to understand nya, but no amount of background reading gal remedies with self-representation; and many of the legal challenges faced by Ke- could have prepared me for the sheer mag- the most important gains for Kenyan wom- nyans, also gave us the opportunity to hear nitude of the disparities between men and en from the Bill of Rights, with emphasis the uncensored perspectives of some of the women in Kenya, even after new laws have on the right of life and abortion and the country’s top political leaders. Our meet- been enacted. I foolishly thought, being of right to freedom from your spouse, namely ing with the members of Parliament was the American “modern woman” school of the prohibition of any violence and torture. particularly insightful. After an animated thought, where a man is considered a lux- The women actively participated in the discussion about the recent changes to the ury not a necessity, that we would educate conversation, asking questions and sharing Constitution, which both men were instru- these Kenyan women on their rights, they experiences that were at times heartbreak- mental in developing and getting passed, would exercise those rights, and slowly but ing. When we explained that any violence they invited us to join them at their private surely the country would move closer to against women was illegal, including be- pier to go jet skiing and speedboating be- equality. Oh, how wrong I was. tween a man and wife and forced sexual in- fore joining them for dinner. Of course, we In an effort to help educate local wom- teractions, many women actually laughed jumped at the offer. en about the gains that the new constitution at the absurdity that their husbands would It was while dining on a delicious sea- provided for them, our group spoke with ever adhere to this new law. Several wom- food feast while watching the sun set over Millicent, a local leader who agreed to help en raised their hands and complained that the Indian Ocean that we had one of the gather women for a forum in the township their husbands would force them to have most candid conversations of the week. I of Kissahoni. Because the old laws afford- sex with them whenever they wanted and personally was taken aback by the amount ed women no property rights, and, often- that they wouldn’t dare refuse beyond a of wealth surrounding us and could not times, left them homeless upon divorce, we feeble “I’m tired,” because they feared that help being slightly inquisitive. After all, we wanted to ensure that women understood they would be kicked out of their homes, had spent the last six days visiting neigh- how the law has changed and now gives or worse, beaten and raped in front of their

the philadelphia lawyer Summer 2020 27 Understanding the difficulties that many of these women face in trying to see their rights actualized, we told them the story of Rosa Parks and the Civil Rights movement, stressing that effectuating change requires courage, persistence, and mobilization of lots of people.

children. Another woman asked whether tive, and, for some, the lunch provided by life. Hopefully, we when return to Mom- it was considered an illegal abortion if her the school is the only time that they will basa next year with the plethora of experi- husband beat her so badly that she lost her receive adequate nourishment. We held ences and contacts that we have made, we child. It was heart-wrenching to have to ex- a supply drive at Penn prior to our trip to will be able to expand Penn Law BLSA’s plain to her that because the new constitu- collect desperately needed donations for mission to help those less fortunate. tion holds that life begins at conception, her the students, ranging from standard schools husband could be found guilty of murder. supplies, like paper and pencils, to soccer Understanding the difficulties that balls for the kids to play with—consid- Kyla Rivera-Smith is a Director, Legal at many of these women face in trying to see ered a luxury to many Kenyans—to shoes, Newport Group their rights actualized, we told them the which many of the students did not own a story of Rosa Parks and the Civil Rights pair of. We were deeply touched by how movement, stressing that effectuating appreciative and excited the teachers and change requires courage, persistence, and students were to receive gifts that most of mobilization of lots of people. We encour- us take for granted as being basic necessi- aged the women to not give up, stand unit- ties but for those at the school were quite ed, and continue fighting and challenging possibly the difference between being unlawful behavior through judicial means. able to only listen to the lesson and being When the conversation was over, the wom- able to participate because they now have en thanked us for sharing such helpful in- a pencil to write with. On our last day at formation and promised to share it with the the school, the students sang us a farewell other women in their community. song and performed a dance routine. I was I, in turn, thanked them for putting impressed by how talented and intelligent things in perspective and teaching me hu- the kids were and saying goodbye was very mility. I thought that I had it bad because, as hard for all of us. a woman entering the legal community, I’ll We ended our week of service with have to work harder than my male counter- a two-day safari parts to prove myself. In no way was I pre- and another two Answers for Crossword Puzzle on Page 31 pared for how bad some women actually days at a local re- have it. Never again will I complain about sort. Relaxing on the inequalities that women in America the beach gave struggle with when I’ve met women who me the chance manage to maintain such a positive spirit to reflect upon in spite of having no voice in their home or my time spent in community. Mombasa. When I We also spent a significant amount of signed up for this time at the Destiny Garden School during trip, I never imag- our week in Mombasa. Our logic was that ined that I would with the newly implemented changes to the have so many life- Constitution, young children are the first changing experi- generation that will be able to benefit from ences and build these positive changes, and therefore are such meaningful possibly the answer to positively chang- bonds with the ing the destitute and bereaved attitude and people that I en- environment of the Kenyan people. Jacob countered in my founded the school to provide an oppor- short time here. tunity for extremely poor and disadvan- Yet here I was, 10 taged children to have access to quality days later, feeling education. Many of the students enrolled like I have a new in the school are orphans and/or HIV posi- perspective on

28 the philadelphia lawyer Summer 2020 BOOK REVIEW By DENNIS SUPLEE ACTS OF OMISSION by James S. Bostwick, Esquire

don’t read book reviews. That’s an overstatement. It would be I more accurate to say that I don’t read a book review if I think there’s a reasonable chance that I might actually read the book. That’s because the typical review ruins things. It not only tells you virtually the whole story but tells you how you should be reacting as you read along. So, to protect the reader from learning too much and thereby spoiling the tale, the information in this review is limited, for the most part, to what the reader will learn in the first 15 pages or so of the book. The book is so realistic that it is easy to lose sight of the fact that it is a work of fiction. This is a book about a trial lawyer written by a trial lawyer. But, unlike virtually every other book of that genre, this book is not about a criminal defense lawyer handling a criminal case. Instead, this book is about a plaintiff’s personal injury lawyer handling a catastrophic injury case in which liability is very dicey. Matt Taylor is an almost-40 plaintiffs’ personal injury lawyer who has a referral practice, with most of his cases coming to him from lawyers who don’t do trial work. Taylor is a capable trial lawyer who is looking to break out of the pack and be thought of as among that elite cadre of go-to lawyers who handle the biggest and best cases. The case in question involves a 20-year-old young man, Todd Gleason, rendered a C6 quadriplegic following an automobile accident. Todd was originally represented by Salvatore Conti, known as “The Prince of Personal Injury,” who is reputed to own the town (San Francisco), the courts, and the media. Conti settled Todd’s case against the driver for something less than the $1 million insurance policy limits. End of ACTS OF OMISSION Conti’s involvement. The case tendered to Taylor, with the statute of limitations By James S. Bostwick, Esquire on the verge of running out, would be 417 pages a legal malpractice claim case against $19.76, Post Hill Press 2019 Conti. The theory would be that Conti

the philadelphia lawyer Summer 2020 29 overlooked and thus neglected to pursue agree to a reasonable settlement offer to develop the love story. a medical malpractice case against the but instead, insists upon going to trial— Speaking of the author. James attending physicians and the hospital and then turns on his lawyer when the Bostwick is a blue-chip plaintiff’s premised on the notion that the critical jury comes back against him; the client personal injury lawyer from San damage to Todd’s spine that left him who, when presented with a settlement Francisco. He has won verdicts totaling paralyzed below the C6 level happened offer, says to his lawyer, “Whatever over $500 million dollars, and, at after Todd was taken to the hospital. you think;” the judge whose view of the one point, won the largest medical So, if he takes the case, Taylor faces merits of the case makes him unforgiving malpractice jury verdict in U.S. history. the daunting task of proving a medical about deadlines; etc. He knows whereof he speaks. malpractice case against the doctors Taylor has a less-than-perfect Bostwick has written a book so and hospital as a predicate to a legal personal life. He is divorced, dating realistic that, until the jury renders malpractice case against Conti—who, only casually, and has limited visitation its verdict, you do not know whether of course, will contend that he was rights with his young son. Naturally, a you are headed to a happy ending or a retained to handle only the claim against promising romantic interest appears crushing defeat. the automobile driver. Conti, it might be early on in the book, and the story of The book’s excellence is reflected said, is destined to be remembered as that developing relationship is skillfully by its nomination for the 2020 Harper one of the legendary villains of lawyer interwoven with the tale of Todd Lee Award for Legal Fiction and by the fiction, a defendant who is not content to Gleason’s case. fact that it is under contract to become play defense. The book is not perfect. (The perfect a movie. In handling Todd Gleason’s case novel has yet to be written.) For example, With the hope that I have not given and others, Taylor deals with the gut- four weeks before the start of the trial, away too much, I commend this one to wrenching problems that trial lawyers, Taylor takes the weekend off to spend you. particularly those on the plaintiff’s some relaxing time in his mountain side, confront too often, including the cabin. In my own experience, by that expert who commits to prepare a report time, the case has taken over your life. and testify and then bails out with the A weekend of leisure is something to Dennis Suplee ([email protected]) deadline for reports looming; the client be remembered longingly. But this and is a partner at Schnader Harrison Segal with a dubious case who will not accept other quibbles are only that: quibbles. & Lewis LLP. his lawyer’s recommendation that he Besides, the author needs time and space

30 the philadelphia lawyer Summer 2020 EXTRAS The Crossword Puzzle answer key can be found on page 28.

the philadelphia lawyer Summer 2020 31 2005 That Was Then 4th Annual YLD ZooBoolee

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Vice Chancellor Jane L. Dalton and Scott P. Sigman of the YLD Executive Committee worked granddaughter Ciara Hoover posed after a face- on judging the costume contest at the Oct. 16 event. painting session.

)YPHUHUK1\SPL:OHɈLYIYV\NO[JOPSKYLU:HIYPUHHUK4HYPZZH[V[OL[O Cindy and Lizzie Gottlieb were among those Annual YLD ZooBoolee at the Philadelphia Zoo. treated to music, face-painting, Halloween treats, and child-friendly animals.

32 the philadelphia lawyer Summer 2020