Vol. 77, No. 3 Philadelphia Bar Association Quarterly Magazine Fall 2014 Family Court Under One Roof Convenient Modern Setting Reunites FJD Divisions By Jeff Lyons

10 Questions Evidence for Mark A. Aronchick on Ohlbaum By Daniel J. Siegel By Mark C. Franek

The Philadelphia L aw y er contents Vol. 77, No. 3 Philadelphia Bar Association Quarterly Magazine Fall 2014

Features Departments

12 Annals of Justice – “Keegy” and the 4 From the Editor by M. Kelly Tillery Magic Bullet Mysterious figure keeps watch over a young attorney 6 Briefs By Steve LaCheen 7 In Memoriam 16 Poverty a Staple in Appalachian Coal Country 9 Civil Litigation Residents of West Virginia community fighting to survive by Dennis R. Suplee By Michael J. Carroll Playing Poker and Trying Cases: Getting Better?

18 10 Questions for Mark A. Aronchick 42 Technology The past Chancellor of the Philadelphia Bar Association was by Daniel J. Siegel a leader in the fight to have Pennsylvania’s same-sex marriage Social Media Changes the Way Lawyers Must Practice ban overturned By Daniel J. Siegel 46 Book Review by M. Kelly Tillery 24 Family Court Under One Roof “Hard Choices” by Hillary Rodham Clinton The Juvenile and Domestic Relations division of the Philadelphia Court of Common Pleas are together again in a 48 That Was Then - 1984 brand-new facility 1984 Bench-Bar & Annual Conference By Jeff Lyons 29 Where Have You Been Stuyvesant Van Veen? Frescoes from the Works Progress Administration era adorn a city courthouse By Richard G. Freeman 32 International Defense Center City lawyer represents client charged in Cambodian genocide case By Richard G. Freeman 34 Evidence on Ohlbaum Beloved Temple Law professor is fondly remembered by those he inspired By Mark C. Franek 40 Lawyers, Golf Pros and Statisticians Nine times out of 10, when someone says something happens “nine times out of 10,” it doesn’t happen that often By William J. Maffuci

29

2 the philadelphia lawyer Fall 2014

from the editor Get Off Livingston Avenue

By M. Kelly Tillery

rom the time I could consciously reason, my Lawyer.” Opportunities that millions of other of my era did father, a Louisiana country lawyer in the mold of not have solely because they were different, most because they Atticus Finch, curiously counselled me to “get off were of a different race, the race of the millions of Americans F Livingston Avenue.” We lived on that “Avenue,” enslaved for 256 years and subjected to Jim Crow and worse for in reality, an unadorned suburban development street, another 100. Those that believe that the civil rights laws of the grandiloquently named after Robert R. Livingston (1746-1813), 1960s, Affirmative Action and an African-American president first U.S. Secretary of Foreign Affairs and Jefferson’s minister have created a level playing field of equality of opportunity, to France who negotiated the Louisiana Purchase, of which much less of actual equality are, at best, ill-informed. this eponymous roadway is a part – a fact no one who lived Two recent books read will change forever the way you there knew then or probably knows now. I looked it up in our view race in this country: “Slavery by Another Name – “World Book Encyclopedia” (pre- the Re-Enslavement of Black Google) when I was 12 and “got off Americans from the Civil War Livingston Avenue” five years later. to World War II,” by Douglas A. I now sit high above one of the Blackmon (Anchor Books, 2009 – five squares of William Penn’s Pulitzer Prize Winner) and “When Greene Towne in a corner office at Affirmative Action Was White: An the storied mahogany partners’ desk Untold History of Racial Equality of Sen. George Wharton Pepper in Twentieth-Century America,” by (1867-1961), founder and scion Ira Katznelson (W.W. Norton & Co., of the 124-year-old Philadelphia 2006). Though freed from actual law firm at which I am now a slavery on Dec. 6, 1865 by the 13th partner. Exactly 1,220 miles “off Amendment, African-Americans of Livingston Avenue.” Although endured disenfranchisement, the my father often muses that he never KKK, Jim Crow, legislative and meant for me to get that far off, he judicial indifference and abuse, knows not that the Philadelphia Bar and perhaps most importantly, from of 2014 is actually light years and 1932-1965, an almost absolute eons away from the world in which exclusion from the government I was born and bred. largesse of The New Deal, The Fair I left the Deep South, not only Deal and The New Frontier. because of the adventures my My father came back from World parental prodding promised, but also War II and rose from poverty to the because it was, as H.L. Mencken so great white middle class, going to appropriately denominated, “The college and law school and buying Sahara of the Bozart” (1920) and, his first home courtesy of the G.I. because of the pervasive stench of Bill of Rights. Although 1 million racism. In 1978, I spent half the African-Americans served in summer working for a prominent, WWII, few received any of the horn large New Orleans law firm to of plenty that was the G.I. Bill. determine whether I should to Though a Caucasian male, I would return the prodigal son to take advantage of my roots, family not be where I am without Affirmative Action, which afforded resources and connections. At a summer clerk luncheon, a firm my parents, but also a more direct version. I was admitted to senior partner answered that question for me when he told a Swarthmore College, one of the most exclusive colleges in the “joke” utilizing the “N-word” and all but a few laughed heartily. nation, not because of my brilliance or stellar academic record, I was sickened and told my father that night that I would never but primarily because I was from the backwaters of Louisiana practice law in Louisiana or return to Livingston Avenue. and seemed to have promise. The G.I. Bill and fortuity of birth I am eternally grateful to my parents and others for giving and geographic diversity created my window of opportunity. this barefooted boy from the bayou so many extraordinary I often tell young men and women considering our profession, opportunities that enabled me to become a “Philadelphia including my own children, that there are too many lawyers in

4 the philadelphia lawyer Fall 2014 this country (the most per capita of any have not even come close to realizing nation), but there are still not enough the Jeffersonian goal of a government good ones. securing certain unalienable rights, In the June 2014 issue of “The including life, liberty and the pursuit of American Lawyer,” the article “What’s happiness to all men who are created The Wrong With This Picture?” chronicles equal. We have much to do. the lack of diversity in large law firms It is my hope that in my role as Editor- Philadelphia and is filled with startling and disturbing in-Chief of this magazine, I shall, in statistics showing that our profession some small way be able to enhance and Lawyer has not changed as much as we may encourage opportunities for others of have thought or hoped. Ferguson, Mo., different races, cultures, backgrounds, Editor-in-Chief is not the only evidence of the persistent faiths, sexes, sexual orientation and M. Kelly Tillery and festering sore of racial prejudice and origin, in their own Jeffersonian “pursuit Editorial Board inequality in our society. of happiness.” And, if that includes Niki T. Ingram I treasure and trumpet diversity, becoming a Philadelphia Lawyer, so Jennifer J. Snyder not primarily as reparation for past much the better. Steven R. Sher injustices and inequality, though a noble David I. Grunfeld M. Kelly Tillery ([email protected]), Steve LaCheen goal in and of itself, but rather as an Harold K. Cohen a partner with Pepper Hamilton LLP, is incredible vehicle to achieve the best John C. Gregory results for us in our practices, our firms, Editor-in-Chief of The Philadelphia Lawyer. Richard G. Freeman our communities and our world. We April M. Byrd Emmanuel O. Iheukwumere Michael J. Carroll James Backstrom Peter F. Vaira Deborah Weinstein Daniel J. Siegel Justine Gudenas May Mon Post

Editor Emeritus Herman C. Fala

Senior Managing Editor Jeff Lyons

Design Wesley Terry Philadelphia Bar Association

Chancellor William P. Fedullo Chancellor-Elect Albert S. Dandridge III

Vice Chancellor Gaetan J. Alfano

Secretary Jaqueline G. Segal

Assistant Secretary Judge A. Michael Snyder (ret.)

Treasurer Wesley R. Payne, IV

Assistant Treasurer The Philadelphia Lawyer (USPS #025-241), printed with soy inks on recycled paper, is published quarterly in March, June, Mary F. Platt September and December by the Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, Pa. 19107-2955. Executive Director Telephone: (215) 238-6300. E-mail: [email protected]. Subscription cost for members is $5 which is included in annual dues, and for nonmembers is $45 yearly. The opinions stated herein are not necessarily those of the Philadelphia Mark A. Tarasiewicz 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 Don Chalphin, Sales Director, ALM, 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103, (215) 557-2359. Periodicals postage at Philadelphia and additional locations. POSTMASTER: please send changes to The Philadelphia Lawyer, c/o Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, PA 19107-2955

the philadelphia lawyer Fall 2014 5 Binvesting r■ hiring i■ job efgrowth ■ in memoriams BriBri efef ss

Survey: Firms See Changes, Yet Not Investing in Future here is broad consensus among law firm leaders on T the changing nature of the U.S. legal market in 2014, as well as an emerging gap between larger firms and smaller firms in their response to those changes, according to the sixth annual Law Firms in Transition Survey. “Many firms, especially firms with fewer than 250 lawyers, are not making sufficient investments in a future they expect to see smaller annual billing rate strategy, 59 percent of larger firms report acknowledge will be different – and increases, fewer equity partners, more making significant changes as opposed different in seemingly predictable ways,” part-time and contract lawyers, reduced to 41 percent of the smaller firms. says Altman Weil principal and survey leverage, and slower growth in profits Larger firms were somewhat more co-author Tom Clay. per partner. likely to be driven by long-term Large majorities of law firm leaders On issues of strategic change, this considerations. Mega-firms – those with responding to the survey agree that year’s survey showed larger firms (those 1,000 or more lawyers – clearly broke greater price competition, practice with 250 or more lawyers) clearly doing from the pack on this question. Eighty- efficiency, commoditization of legal more than their smaller-firm colleagues. six percent of that group indicated that work, competition from nontraditional Nearly half of all firms with 250 or their decision-making is long-term in service providers, and non-hourly billing more lawyers report changing their nature and designed to lock in clients. are all permanent changes in the legal strategic approach to pricing, while Clay cautions smaller firms to take landscape. For the most part, these only 22 percent of firms with 50 to note: “Regardless of the reasons, once are changes that have been imposed 249 lawyers are doing so. In the area one segment of the market starts moving upon them from without – from more of efficient legal service delivery, 54 toward a new more client-focused model demanding clients and more competitive percent of the large firm group are and resetting market expectations, other newcomers who are challenging the rules pursuing change, compared to 34 percent firms will need to fall in step or they will of legal service delivery. of the smaller firms. On lawyer staffing inevitably fall behind.” When asked about the most likely change agent in the legal market over Hiring Expected to Increase in Second Half of Year the next 10 years, 34 percent of law firm leaders identified corporate law he legal field should see more Forty-two percent of lawyers expect departments as the force most likely hiring activity in the second litigation to generate the greatest to lead change; 32 percent chose T half of 2014, a study from number of legal job opportunities in the technology innovation; and, 15 percent Robert Half Legal indicates. Twenty- second half of 2014. Within the litigation selected non-law-firm providers of legal nine percent of lawyers interviewed by practice area, insurance defense was services. Only 10 percent of respondents Robert Half Legal said their law firm cited by 31 percent of lawyers as the believe that law firms will take the lead or company plans to expand or add leading driver of job growth, followed in reinventing the legal market. new positions in the next six months, by commercial litigation (30 percent). Firm leaders also agree on the up slightly from a prior hiring survey Fifty-two percent of lawyers said they consequences of the shifting marketplace, conducted six months ago. expect to only fill vacant posts, while 10 although with less unanimity. Most

6 the philadelphia lawyer Fall 2014 percent said they would neither fill vacant positions nor create in their organizations. Twenty-one percent of lawyers new ones. Just two percent of respondents anticipate staff pointed to a referral from a current employee or member of reductions in the next six months. their networks as the primary indicator of success. “Top law More than half (56 percent) of respondents cited at least some firms and companies attract top talent so having prior work challenge in finding skilled legal professionals. Volkert noted experience with an organization known for hiring great people that employers are becoming more exacting in the expertise can be an asset on a resume,” said Volkert. they require, making the task of finding legal specialists with Hiring is not the only personnel concern for legal sought-after skills even more difficult. “Increasingly, partners organizations. Retention also is high on their list of priorities, and general counsel need outside help to staff these hard-to- with nearly one-third (32 percent) of lawyers expressing fill positions,” he said. concern about losing top performers to other job opportunities. Employers are placing significant weight on experience Employers who are concerned with recruiting and retaining and personal recommendations when recruiting candidates. top legal talent may want to examine their compensation Nearly half (49 percent) of respondents said previous work packages: Half (50 percent) of lawyers surveyed said increased experience or prestige of a former law firm or company are compensation or bonuses provide the greatest incentive for the best indicators of a job applicant’s potential for success legal professionals to remain with an employer. Philadelphia Lagging Behind the Nation in Job Growth

ob growth in the Philadelphia market area, which recovery is continuing to lag behind the rest of the nation’s. includes the city and surrounding counties in Pennsyl- The area’s lack of cyclical growth drivers, particularly J vania and Southern New Jersey, has lagged behind the in manufacturing and high-tech, appear to constrain the rest of the U.S. for more than three years. upside. The area’s mild housing market downturn and poor After a milder recession compared to the U.S., Philadelphia’s demographics also mean less of an upswing in homebuilding and house prices. One positive is less drag from government budget cuts at the federal and local levels as the emphasis on deficit reduction fades with an improving economy. Also, office construction is picking up, including plans for a second skyscraper for local powerhouse Comcast. But job and income growth will likely remain below the national average in the near term. This will also likely limit the rebound in industries tied to consumer spending, including retail trade and leisure/hospitality services. The state is set to award a license for a second casino in

■ in Memoriam ■

Barbara Cushman Waxler Mary Elizabeth Luce June 3, 2013, Age 82 July 8, 2014, Age 55

William G. Young Robert F. Rossiter Sr. May 22, 2014, Age 53 July 17, 2014, Age 82

William C. Yager Martin J. Corr June 4, 2014, Age 87 July 28, 2014, Age 77

Rubin Mogul Robert H. Zimmerman June 27, 2014, Age 90 Aug. 11, 2014, Age 81

David Cohen F. Emmett Fitzpatrick Jr. July 5, 2014, Age 90 Sept. 2, 2014, Age 84

Please send In Memoriam notices to [email protected].

Have you considered a contribution to the Philadelphia Bar Foundation in memory of a deceased­ colleague? For information, call Jessica Hilburn-Holmes, Executive Director, at 215-238-6347.

the philadelphia lawyer Fall 2014 7 Philadelphia in 2014. Building a new casino would help The PNC Financial Services Group, Inc. (“PNC”) uses the names PNC Wealth Management®, Hawthorn, PNC Family Wealth® and PNC Institutional support construction employment in the short run, and Investments® to provide investment and wealth management, fiduciary additional gaming would create permanent jobs in tourism, services, FDIC-insured banking products and services and lending of funds especially if the casino includes a hotel. One downside risk is through its subsidiary, PNC Bank, National Association (“PNC Bank”), which is a Member FDIC, and uses the names PNC Wealth Management® and that the process of awarding a license could be delayed by legal Hawthorn, PNC Family Wealth® to provide certain fiduciary and agency challenges. Another is potential federal budget cuts: the area is services through its subsidiary, PNC Delaware Trust Company. Securities products, brokerage services and managed account advisory services are home to many federal facilities and defense contractors, and offered by PNC Investments LLC, a registered broker-dealer and a registered further reductions in spending would likely be a major drag on investment adviser and member of FINRA and SIPC. Insurance products economic growth in the area. may be provided through PNC Insurance Services, LLC, a licensed insurance agency affiliate of PNC, or through licensed insurance agencies that are not Over the longer run, the area’s important concentrations affiliated with PNC; in either case a licensed insurance affiliate may receive in education/health services and finance should help provide compensation if you choose to purchase insurance through these programs. protection against national recessions, but also may limit gains A decision to purchase insurance will not affect the cost or availability of other products or services from PNC or its affiliates. Hawthorn and PNC during expansions. Consolidation in the key pharmaceuticals do not provide legal or accounting advice and neither provides tax advice in industry may also be a restraint on growth. Philadelphia is lagging the absence of a specific written engagement for Hawthorn to do so. PNC the U.S. in employment in well-paying cyclical industries, does not provide services in any jurisdiction in which it is not authorized to conduct business. PNC Bank is not registered as a municipal advisor under including high-tech industries that would help support long- the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Act”). run job and income gains. Weak long-run population growth Investment management and related products services provided to a will also likely deter investment in the area. Economic growth “municipal entity” or “obligated person” regarding “proceeds of municipal securities” (as such terms are defined in the Act) will be provided by PNC in Philadelphia is expected to be below average over the long Capital Advisors, LLC, a wholly-owned subsidiary of PNC Bank and SEC term, although incomes are likely to remain above the national registered investment adviser. average. “PNC Wealth Management,” “Hawthorn, PNC Family Wealth” and “PNC Institutional Investments” are registered trademarks of The PNC Financial Services Group, Inc. The material presented in this article is of a general nature and does not constitute the provision by PNC of investment, legal, tax or accounting advice Investments: Not FDIC Insured. No Bank Guarantee. May Lose Value. to any person, or a recommendation to buy or sell any security or adopt any Insurance: Not FDIC Insured. No Bank or Federal Government investment strategy. Opinions expressed herein are subject to change without Guarantee. Not a Deposit. May Lose Value. notice. The information was obtained from sources deemed reliable. Such information is not guaranteed as to its accuracy. You should seek the advice of an investment professional to tailor a financial plan to your particular © 2014 The PNC Financial Services Group, Inc. All rights reserved. needs. For more information, please contact PNC at 1-888-762-6226.

8 the philadelphia lawyer Fall 2014 Civil litigation By Dennis R. Suplee Playing Poker and Trying Cases: Getting Better? Practical Skills Translated From the Poker Table to Courtroom

he client, who for a time made a living as a profes- sional poker player, sent an Temail telling me to attend a presentation by Annie Duke: “You’ll learn in 40 minutes what I’ve been trying to teach you the last three years.” As evidenced by her victories in the World Series of Poker Tournament of Champions and the National Heads-Up Poker Championship, Annie is a world- class poker player. She also has a Masters in psychology (and reached ABD status on her doctorate work) that helps her to apply to the business world her insights as to how poker players learn, or do not, them from a harsh self-evaluation. poker players who blame their loss on bad from feedback. Here’s what Annie had to Playing poker is an intensely personal luck – bad luck that the judge screwed up say, followed by how it might apply to experience. You sit at the same table with the charge, bad luck that the jurors did not trial lawyers. your adversary and can look him directly “get” the technology, bad luck that their Annie Duke – Part 1: Skill in the eye. At the end of each hand, and expert inexplicably went south, bad luck (Yours) versus Luck at the end of the night, you won or you that ***. lost. It is entirely understandable that if A sign that trial lawyers are not learning Because in poker the feedback comes you lost, you would not be looking for is that they slip into doing things the fast, it is a particularly appropriate game an unsparing self-critical review of what same way over and over. For example, for an examination of how well one learns you might have done differently. Better to they follow the same format at every from feedback when there is uncertainty blame it on bad luck. But when you do deposition: give the deponent his civil as to the cause of the outcome (that is, that, you stop learning. You stop getting Miranda warnings (re: speaking up if he where luck is at play). You can play more better. does not hear, etc.), then ask about his than 30 hands in an hour and can see DRS - Part 1: Luck in Trial education and employment, then elicit the almost immediately how your decisions, Practice? facts in chronological order. Similarly, if and those of others, worked out, as you you read their last three closing speeches win or lose chips. Do trial lawyers have anything to learn in other cases, you can predict quite But in spite of the rapid feedback, from Annie’s critique of poker players? I reliably what they will say in yours. most players reach a level somewhere think so. Do trial lawyers tend to see the world in the intermediate range and then stop The feedback loop is a not as fast but like Annie’s poker players (winning when improving. Why? When you talk to these there is a constant flow. You won or lost skill determines the outcome and losing players, a pattern emerges: when they that motion. The deposition went well only when bad luck snatches victory won, it was because the hand was well or badly. The process of self-assessment away) to protect themselves from a harsh played; when they lost, it was because should start early and continue throughout. self-evaluation? they had bad luck. Conversely, when At first glance, it may appear that the Trying a case, too, is an intensely their opponents won, it was because their role of luck is greater in poker than in trial personal experience. You are involved opponents had good luck; and when they practice. There are many quotes about in a grueling mano-a-mano exercise that lost, it was because the hand was badly luck in poker, but trial practice is typically is the culmination of weeks, months, played. If you look at the world that way, treated as a craft, a skill, the product of perhaps years of hard work. It is a highly there is nothing to be learned: you win hard work, not luck. As Louis Nizer competitive exercise in which you try to every time except when bad luck snatches observed, “You’ll still find me in the persuade the judge to accept your version away victory; and your opponents would library looking for luck at 3 o’clock in the of the law, and the jurors to accept your never win but for their good luck. My morning.” Many trial lawyers are loath to version of the facts. Meanwhile your thesis is that people are inclined to see the acknowledge the role of luck – until they opponent is attempting to do just the world that way in part because it protects lose. Then they behave just like Annie’s opposite.

the philadelphia lawyer Fall 2014 9 Like the typical poker player, when there is an opportunity to learn. Rather senior members of organizations evaluate we lose, we are not looking for a brutally than paying no attention after you have juniors:] honest post-mortem assessment of our folded, you can follow the play of those Curiously, we tend to evaluate juniors as performance. Perhaps that explains why still in the game and see, to some extent, if the only variable is skill: if it was a good the losing trial lawyer will sometimes what decisions they made and how they outcome, it was because of the junior’s pass on the opportunity to talk to jurors worked out. And because you are not in good play; if it was a bad outcome, it was about why they decided the case against the hand, it costs no chips to learn. because of the junior’s bad play. This view him. His self-image cannot stand it. It was DRS - Part 2: Free Feedback in takes luck completely out of the equation just bad luck. But, if we take that view, Trial Practice – which is wrong (wrong because it is the result is that we stop learning. We stop inaccurate). This view promotes overall getting better. There are opportunities for litigators, disappointing performance because, to Even when we’ve won, we’re not like poker players, to learn even when avoid being blamed for a bad outcome, looking for a neutral critique; we are they are “not in the hand.” The question is the junior will likely make the most looking for accolades. The last thing we whether we will take advantage of them. conservative decision, rather than taking want to hear is that the jurors decided Take the last year: how many times have a bigger risk that might produce a much the case for our client in spite of our you walked to the courthouse to watch bigger payoff. performance, not because of it. the openings or closings in a significant DRS - Part 3: Evaluating It is important to understand that these case? To watch an argument involving a Junior Lawyers comments apply not just to the lawyer controversial question? If the answer is with intermediate trial skills, but with none, do you have nothing to learn from If we evaluate junior lawyers that way, equal force to the excellent trial lawyer the area’s leading trial and appellate they may become reluctant to try cases for who is regularly achieving excellent lawyers (even if you count yourself fear that, if they lose, the senior lawyer results. Success should not make us among them)? will attribute the loss to poor performance resistant to improvement. Annie Duke – Part 3: (even though the senior lawyer would Annie Duke – Part 2: Free Evaluating Juniors attribute his own loss of the same case to Feedback bad luck). The result is a cadre of junior [Relying on her background in lawyers on the defense side who believe After scanning the hand dealt to me, I psychology, Annie then stepped beyond that the appropriate model is to prepare fold 80 percent of the time. But even then, the world of poker to comment on how the case thoroughly, and then move for

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10 the philadelphia lawyer Fall 2014 The litigator who steps back to ask: “What am I doing and why?” and “Are there better ways?” will learn and become better. summary judgment. If you win, great; if The self-critical litigator may decide not Why?” you lose that motion, settle. And a cadre to give the deponent her civil Miranda Use that self-analytical approach on on the plaintiffs’ side who believe that warnings if she is a well-educated every aspect of the trial from A to Z. you take the case to the brink of trial successful CEO. Is there any real chance And, keep in mind that in trial practice, and then accept defendant’s final offer. that she will be able to wriggle out of a as in poker, you can learn a lot from your A settlement can always be characterized damaging answer at trial by saying that opponent. It can, of course, be terribly as a win – by both sides. The last thing she did not understand the question at difficult to learn from an opponent the junior wants to do is try the case, her deposition but was afraid to ask for whom you have been battling day after even if a win might produce, or save, big clarification? day, especially if you see him as an dollars, because you might lose. Which, The result of such a self-assessment may unprofessional jerk. But don’t be tempted, of course, is unthinkable. be a decision to postpone questions about like Annie’s losing poker players, to Annie Duke – Part 4: the deponent’s education and employment attribute your opponent’s success solely Learning, Getting Better, history – why do things exactly as the to luck. (As Jean Cocteau put it, “I believe Taking Risks witness is expecting? – and, instead, start in luck. How else can you explain the with the key event, e.g., the happening of success of those you dislike?”) How does one avoid this culture of the accident, the key meeting. After the discussion is rolling and failing to learn, failing to get better and Similarly, if you have honestly assessed there’s agreement that, yes, we should always taking the conservative approach? your past performances and have looked have taken a different approach, ask Some suggestions: to learn from others, you will make a whether there was a way to figure that • Follow the “no moaning” rule. Instead better closing. Consider varying the out in advance. That gets close to the fault of moaning that you had three aces but natural order of topics by talking first question but it’s important to ask because lost, ask what is to be learned from about damages and then liability. Consider if the answer is “Yes,” you have improved that hand? whether rhetorical questions will work. the chances that if you see the same kind • Recognize that decisions and Look for key snippets of testimony. In of thing developing in the future, you outcomes are not perfectly correlated. one case, counsel for plaintiff juxtaposed will remember the lesson learned and act You might do everything right and testimony that, earlier on the day of the accordingly. lose, or everything wrong and win. accident, plaintiff was “running back and Often your partners will force you • Admit mistakes. A good place to forth,” with her post-accident paraplegia to to make an honest assessment of your start is with a situation that had a highlight the impact of the accident on her performance. Jerry (now Judge) McHugh happy outcome. Review each of your life. Such rhetorical flourishes are more tells of the day he won his first million- intermediate decisions leading to often the product of careful forethought dollar verdict. When he told his mentor, that outcome. It’s easier to be self- than of spontaneous inspiration. Jerry Litvin, the news, Litvin asked, “Was critical about your decisions when the After the trial is over, how should you it a million-dollar case?” “Yes,” replied ultimate outcome was a good one. go about a self-critical evaluation? A McHugh. “Then,” said Litvin, “what did • Convey that message to others in your week or so after the verdict is returned, you add?” firm. If the result was disappointing, conduct a post-mortem with others on the In a sense, the message is don’t be afraid ask, “Is there a lesson to be learned?” trial team. You need time to assimilate to make mistakes. Former Secretary of the Or, if somebody had a nice win, things, but want to confer while thoughts Navy John Lehman made this observation congratulate them but then ask, “Was are still fresh. about great naval leaders: there a way to get an even bigger Don’t talk in terms of what you and “All great leaders have made bad win?” your colleagues did right and what wrong. decisions and miscalculated risk • Talk through your bad decisions and It is not supposed to be a search-for-the- at times in their careers. A leader ask yourself what lessons might be guilty exercise; it is supposed to be a cannot achieve success without learned. what-have-we-learned session. So, as failures along the way . . . but they DRS - Part 4: Learning, you review what happened during the learn from them.” Getting Better, Taking Risks trial, don’t ask, “What did we do wrong The same is true of all great trial in cross-examining that expert?” There lawyers. The litigator who steps back to ask: will be natural inclination by all to deny “What am I doing and why?” and “Are that they did anything wrong. Rather, ask, Dennis R. Suplee ([email protected]) there better ways?” will learn and become “If we were going to try the case all over is a partner with Schnader Harrison Segal better. again, would we take the same approach & Lewis LLP. Take the lawyer who follows the same in cross-examining Dr. Spock? What questioning format with every deponent. other approaches would we consider?

the philadelphia lawyer Fall 2014 11 “Keegy” And The Magic Bullet Annals of justice

By Steve LaCheen

his is a recollection from the early days of my practice, and worn long in back, not as a fashion statement but as an emblem of a remembrance of a time long past. Long before we ever disinterest by someone whose brisk gait spoke, I was fascinated by someone I saw in the corridors was either taking him to or from some T serious business just around the corner. of City Hall day after day, often several times a day. He was, to me, With an unsmiling, thin-lipped mouth a fledgling lawyer in my early 20s, an “older man.” He was always that looked like a smile would split his face like a scythe, he had the affect of dressed exactly the same, in a wrinkled gray suit, a size or two someone who was all business, not to larger than his short frame required; a wrinkled shirt, originally be waylaid by trivial pursuit or idle chatter. white, now seemingly shadowed with wear; and a skinny black tie. And he always carried the same accessory, a black leather bag, the size and shape of those carried by doctors at that time. I never saw him without it. But it wasn’t his sartorial suit, shirt or haberdashery that Often, as I passed him in the halls, he looked at me fixedly, caught my eye. It was his purposeful, peripatetic gait, and his but it was several years before we spoke. I took no offense at eyes. Like most, he had two, one on each side of a strikingly his stare, which I attributed to poor eyesight as evidenced by aquiline nose; but, unlike most, they were magnified into his bottle-thick glasses. enormity by bottle-glass-thick eyeglasses, through which he My curiosity aroused, whenever I saw him pass by, when I peered at the world, unblinking, as though slightly amazed at was standing outside a courtroom waiting for my case to be what he saw. called, chatting with other lawyers, the police, or even from Up close, he had the gray pallor of someone who shunned time to time a client, I asked if anyone knew who he was. No the sun, and thick, shiny black hair, receding in front, lank one knew. Most of the other lawyers acknowledged that they

12 the philadelphia lawyer Fall 2014 had seen him; some even often, but no one could say who he But, if you do that just to call me for nothin’, just to prove you was, or what function he performed. figured it out right, I’ll hang up if you ever call again. So, my Someone said he always assumed the mystery man was just advice is that you don’t waste your time or mine trying that. some minor bureaucratic functionary. Another time, one of the And, remember, most important, it’s only good for a one-time lawyers referred to the black bag as probable cause to believe use!” And then he was gone. he was actually a “bag man” for some politico. But no one At about this time, Reader, you may be wondering where really knew. this is all leading. At least, that’s what I hope you are thinking. And then, one day, just as we were about to pass each other Well, I’ll tell you. in the hall, he stopped and stepped in front of me. I took Keegy at his word, almost. I did spend some time “I know you,” he said. “You’re LaCheen.” thinking about how to figure out his number. I assumed, and “Yes,” I said. “I’m LaCheen, but how did you know that? rightly so, that it was unlisted. Neither the phone book nor Do I know you?” “Information” revealed a telephone listing for Keegy, which “Nobody knows me, kid; but I know everybody. That’s my I didn’t even know was his last name, his first name, or his business. And I know you; or leastways I know you’re from nickname. But, I did have the exchange, “FU 9” and two of the neighborhood and people say you’re OK.” the four digits; so there were only 100 possible combinations “Who?” I asked. “Who says I’m OK?” of the missing two numbers. “People,” he said. “People who know those things.” Calling numbers to eliminate them was a bad idea. If I I could see he wasn’t going to be happened to fortunately dial the specific, so I backed up a step. I had right one, it would be “game over,” the feeling he wouldn’t tell me his and whatever help that might name if I asked outright, so I held otherwise be available from Keegy out my hand, and said “I’m pleased Every time I thought would, as he threatened, evaporate. to meet you, Mr. ...?” Plan B was a little better, and a “Kiki,” is what I thought he said. of going to that well, I lot easier – a friend at the telephone “Kiki?” company. He wouldn’t disclose an “K-I-K-I?” I asked. had second thoughts. unlisted number, but he was able “Do I look like a ‘Kiki’?” he to eliminate almost 90 numbers, asked, rhetorically. Surely, the current leaving less than a dozen unlisted “Not K-I-K-I,” he said. “K-E-E- problem wouldn’t be or unassigned; so, I felt comfortable G-Y. Keegy!” with the knowledge that, in a pinch, He shook my hand, and in doing the worst one I would I would have to dial no more than a so placed what I thought was a dozen numbers, until I hit the right business card in my hand. ever encounter; better one. I made a list of those dozen “My card,” he said. “Keep it, numbers on the back of Keegy’s and if you ever need me, just call. to save the card for the card and put it in my desk at the Meanwhile, I’ll be lookin’ out for worst one, which would office for safekeeping and possible ya.” future reference. With that, he smiled, or at least surely come. The funny thing was, I never turned up the corners of his mouth, used the card. I never called or and somehow, without seeming to even tried to narrow down the last turn or move, he was walking away dozen numbers. Just having the card in the direction from which he had was like having the “Get out of Jail come. Free” card in Monopoly. Every time I entered the courtroom to which my case was assigned, I thought of going to that well, I had second thoughts. Surely, nodded to my client, and took a seat in the lawyer’s row. I the current problem wouldn’t be the worst one I would ever looked at the card in my hand. On one side was printed the encounter; better to save the card for the worst one, which words, “MY CARD.” On the other was what I thought was would surely come. So, I never did use the card. Just having a telephone number until I noticed there were the usual two it as a sure-fire “fail-safe” gave me a level of comfort I would letters, “FU,” for Fulton, but only three rather than the usual not otherwise have had, and the impetus to struggle to find five digits. my own solutions until such time as I had no solution and was I was about to throw the card away, but I thought it would truly desperate enough to seek out the magic bullet. I never make a good anecdote, so I slipped it into my briefcase for did. safekeeping, to corroborate the story. For some reason I sensed And one day, I realized that I hadn’t seen Keegy for some but could not articulate, I decided to keep the story to myself. time. When I asked around, no one else had seen him lately, A week or so later, I ran into Keegy in City Hall. and still no one even knew exactly who he was or what he did. “What’s with the card?” I asked. “It’s missing two numbers.” I never saw him again. “Yeah, that’s so you can’t just pick up the phone and call me So, this is a story, as one of my editorial colleagues might until you really need me. Then, when it’s really worth your say, that didn’t “go anywhere.” while, you’ll take the time to figure out the missing numbers. But, there is a coda.

the philadelphia lawyer Fall 2014 13 The Law of Oil & Gas in PennsyLvania The definitive guide to oil and gas issues in Pennsylvania

Pennsylvania’s law of oil and gas was originally developed by the courts in the nineteenth century. Significant statutory and regulatory controls were not developed until the mid-twentieth century. The courts, General Assembly, and Commonwealth agencies are extensively reevaluating existing Benefit from the analysis and law in this area. This treatise examines both title and regulatory issues relating to oil and gas. This advice of 28 accomplished and examination is made both from the perspectives of land and mineral rights owners and the oil and gas industries. The treatise thoroughly explores the rich history of oil and gas legal concepts and the respected leaders in oil and gas technical, environmental, and regulatory issues unique to exploration for and production of oil and gas law practice in Pennsylvania. Editors/authors Joel R. Burcat Stephen W. Saunders Part I: Historical and technical Background Part III: regulatory Issues • Historical Background of Pennsylvania • Overview of Pennsylvania Regulatory Issues additional authors Oil and Gas Law • Permitting and Environmental Regulation Amy L. Barrette Marc J. Bern • Technical Background— • Wetlands and Waters Permitting Geology and the Drilling Process George A. Bibikos • Compact Commissions and Their Impact Lauren M. Burge Part II: Ownership, transfer, and title on Oil and Gas Permitting Robert J. Burnett • Title Defects and Their Cure • Natural Gas Pipeline Regulation John W. Carroll • Ownership of Oil and Gas Interests • Wildlife Issues Sean Cassidy • Understanding, Interpreting, and Shaping the • Zoning and Municipal Regulation Brian J. Clark Evolving Pennsylvania Oil and Gas Lease of Oil and Gas Robert W. Diehl Michael Dillon • Implied Covenants • Development of Oil and Gas on State Kevin J. Garber • Pooling and Unitization and Federal Lands Robert M. Jochen • Representing Citizens in Challenges • Oil and Gas Lease Negotiations from the Michael P. Joy to Oil and Gas Permits Lessor’s Perspective Tate J. Kunkle • Litigation of Natural Gas Claims • Oil and Gas Lease Negotiations from the Lisa C. McManus from the Plaintiff’s Perspective Lessee’s Perspective Jeremy A. Mercer • Resolving Issues Involving Dormant • Litigation of Natural Gas Claims Thomas B. Murphy from the Defendant’s Perspective Oil and Gas Interests Joe Osborne Ross H. Pifer Jonathan E. Rinde Russell L. Schetroma Pennsylvania’s law of oil and gas will continue to evolve as courts grapple with the application of new Mark Szybist technologies and concepts that collide with a body of case law developed in the nineteenth and early Lauren M. Williams twentieth centuries. Purchase this book and learn about emerging developments and everything you Elizabeth U. Witmer need to stay informed about oil and gas law in Pennsylvania. Matthew L. Wolford Jordan B. Yeager The Law of Oil & Gas the Law of Oil & Gas in Pennsylvania in Pennsylvania

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Purchase of this CD-ROM entitles the owner to use it on This book is included in PBI’s automatic update service. PBI will publish new editions as a single computer only. It may not be copied or used over a CR – 7610 © 2014 network without express Pennsylvania Bar Institute 800-247-4724 | www.pbi.org written license from PBI. All Rights Reserved appropriate to keep the book up to date. Everyone who purchases the book will receive each update at a reduced price with an invoice and an option to return it with no further obligation. ISBN 978-1-57804-015-5 NOTE: If you do not want to be enrolled in this service, simply check the box so indicating on the order form. That was why, he said, that he had been so dead set against my becoming a lawyer; he hadn’t wanted me to end up as a businessman, like him.

In 1989, the last year of my father’s know this, but I actually reached out to Post-script: life, we spent a lot of time together, and a friend from my old neighborhood, a When the Lewis Tower building in a lot of that time talking about the old guy that supposedly had “connections,” which I had my offices for 40 years went days, dredging up a lot of issues just to ask him to look after you. Did you “residential condo” and we had to relocate, to acknowledge them and put them ever hear from him. His name was...” I found stuck to the back of the center away one last time, “for good.” It was He paused, trying no doubt to recall drawer in my desk, the card I was given during one of those talks that he told the name of the man he had chosen to back in 1960, a copy of which is attached me, confessed you might say, that he be my guardian angel. here. The side of the card with the numbers had always been afraid that I wouldn’t “Keegy?” I said. had become stuck to the desk drawer and succeed as a lawyer, not so much “Yes, that’s it, Keegy. A funny name had to be scraped off; and the numbers, because he doubted me as much as for a funny little guy. Did he ever help like Keegy, had disappeared. because he had a relative who had gone you out?” to law school who never succeeded “He helped me a lot, Dad. And so did as a lawyer and ended up “just a you; more than you know.” businessman.” That was why, he said, that he had been so dead set against my Steve LaCheen (slacheen@concentric. becoming a lawyer; he hadn’t wanted net), a partner with LaCheen, Wittels & me to end up as a businessman, like Greenberg, is a member of the Editorial him. Board of The Philadelphia Lawyer. “So,” he said, “I never wanted you to

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the philadelphia lawyer Fall 2014 15 Poverty a Staple in Appalachian Cyoal Countr

By Michael J. Carroll

ppalachia was in trouble long before I arrived there as a newly County, W. Va. After my interview minted legal services lawyer some 35 years ago. It was also at the main legal services office in Charleston, I got on a bus and in trouble 100 years ago during the coal wars in which union rode...for hours. The proverbial A crow could have flown the miners fought for basic human, civil and economic rights. It is still in distance in an hour. The bus trouble now 50 years after a war on poverty was declared to rescue it took many. The narrow winding and other poor rural and urban parts of this country. two-lane roads – even the West Virginia Turnpike was two lanes then – and the stops in scores I grew up in the anthracite coal region of Pennsylvania and of small coal towns and crossroad patches made for a long knew a little about coal country. I was not prepared for the dizzying journey, often through tree-and mountain-shadowed poverty and hard life of the southern mountains. midday twilight. I was assigned to the legal services office in Welch, W. Va., When I arrived in Welch I found a town clinging to a the McDowell County seat. McDowell makes the news now narrow strip of flat land wedged between mountains on one and then as a rural compliment to the urban poverty of cities side and the river a few hundred yards on the other. A lot of like Camden, N.J., where I would work in later years at legal hardworking people were trying to cling to mining jobs fast aid and the public defender. disappearing. McDowell is also sometimes used as a media placeholder at Fall in the mountains had its pretty side, more so if you the lower end of the life expectancy and income continuums, drove an hour or two to escape coal country. Fall yielded to compared unfavorably to places like Fairfax County, Va., on winter which brought days so short they fit better nearer the the other end of the continuum – a half-day’s drive by one Arctic Circle than in the middle of North America. At the measure, and a million miles away by another. An average time of the winter solstice the sun did not clear the mountains man in Fairfax can expect to see age 82. A man in McDowell surrounding Welch until midmorning, and disappeared below can count on 64 years. In Fairfax County, the median annual them by mid-afternoon. income is five times that of McDowell County. Welch once had a Hollywood moment. It was featured in It was late spring when I first saw Welch, McDowell the film “Matewan,” the story of a 1920 coal miners’ strike

16 the philadelphia lawyer Fall 2014 that turned into a war. At the end of the movie the epilogue lunches helped lift many in the mountains out of poverty for noted that Sid Hatfield, the police chief who sided with the a time, like Social Security had done earlier for the elderly. miners, was shot to death by Baldwin-Felts detectives as he In recent years, the disappearance of good-paying mining walked up the steps of the McDowell County courthouse – the jobs and the rise in drug use have destroyed families and place where I first practiced law. communities in southern West Virginia with McDowell hit There is a long history of this hard. Nearly half of the children do country discovering Appalachian not live with a biological parent. poverty and then forgetting about Fewer than one in three McDowell it. That poverty ebbs and flows but residents is now in the labor force. never disappears. Each time it ebbs, Government programs, including it ebbs a little less and flows back a Government black lung benefits, account for half little more. of the income of county residents. John F. Kennedy discovered the programs, including Many would not survive without West Virginia poor during the 1960 black lung benefits, them. presidential primary elections. He The rough statistics go on. You can spent lots of hours and lots of his account for half of discount some here and explain away father’s money fighting to prove some there, but the overall picture that a Catholic could win in a the income of county cannot be denied and is not good. Protestant state, then go on to win One hundred years after the the presidency in a still Protestant- residents. Many would coal wars and 50 years after the dominated country. He won the West not survive without declaration of the War on Poverty, Virginia primary, the nomination, Appalachia is still in trouble. The and finally the White House. He did them. nation has discovered poverty once not forget the Appalachian poor. As again in the southern mountains. president, he tried to do something People there are still fighting hard about it. Then he died. His brother to survive. The new national plan Bobby tried to do something seems to be to do nothing for them. as cabinet officer, senator and presidential candidate. Then he died. Both murdered. Michael J. Carroll ([email protected]), a public JFK’s successor, President Lyndon Johnson (LBJ) also interest attorney, is a member of the Editorial Board of The tried, declaring his War on Poverty 50 years ago and opening Philadelphia Lawyer. a major front in Appalachia. Medicare, Medicaid and school

the philadelphia lawyer Fall 2014 17 Ques10tions for Mark A. Aronchick Chair, Hangley Aronchick Segal Pudlin & Schiller

Interview by Daniel J. Siegel

ark A. Aronchick is a past Chancellor of the Philadelphia Putting together the Hangley team was easy. Just about everybody in the Bar Association and was the youngest City Solicitor in the firm wanted to be part of this case. So history of Philadelphia under Mayor William J. Green. we put together a team the way we M Aronchick was a leader in the coalition in Whitewood v. would put together a team on any high- Wolf, the lawsuit that successfully overturned Pennsylvania’s exclusion of profile, important case that we do for our clients. I sat down and looked at same-sex couples from marriage. the needs of this case, and figured out a Daniel J. Siegel: Why did you get involved in Whitewood staffing pattern that made sense. v. Wolf, what many people call the same-sex marriage case? How did you locate the plaintiffs in the case? It’s no surprise that many people wanted to be part of this case. Mark A. Aronchick: It’s hard to imagine a more important There was a pent-up emotional need and desire to be part of case. When Mary Catherine Roper of the ACLU called, this, like nothing I have ever seen before. The question really in January of 2013, it took us less than a nanosecond to say was how to put together a group of people who would give us yes. It was six months before U.S. v. Windsor [the Supreme our most compelling presentation. Court case requiring the federal government to recognize Remember, this was months before Windsor and Perry. same-sex marriages], but everybody knew that Windsor and I personally poured through the records and briefs in every [Hollingsworth v.] Perry were going to be the seminal cases important case from Goodridge, the major Massachusetts that year in the U.S. Supreme Court. It was obvious that this 2003 case, through Windsor and Perry, and other cases that case was going to be today’s chapter in the major civil rights were pending at the time. Along with the ACLU and Professor battles in American history. Kreimer, we considered all of the issues that the opposition could conceivably throw at us. Then we focused on possible How was the coalition created? plaintiffs whose stories and backgrounds answered those The coalition included our firm, the ACLU, and Seth Kreimer, questions. For example, if we were going to hear that same- a professor at University of Pennsylvania Law School. We put sex marriage is not good for children, we made sure we had together a team of five lawyers, Helen Casale, John Stapleton, plaintiffs who raised children. The opposition elsewhere argued Rebecca Melley and Dylan Steinberg, at the Hangley Aronchick that same-sex marriage was bad for business or all kinds of firm. The ACLU team included their Pennsylvania and national wacky arguments. But still we were determined to answer any lawyers, including Vic Walczak, Mary Catherine Roper, Molly and everything we thought would be raised. We wound up with Tack-Hooper, Leslie Cooper and James Esseks. a group of wonderful, very committed people.

18 the philadelphia lawyer Fall 2014 PHOTOGRAPHED BY John Carlano

Also, the important thing about this cases were being filed around the opinion, and is a Bush appointee. group of plaintiffs is that they really country and federal judges were issuing He’s not necessarily the person are a cross-section of Pennsylvania. their opinions, it became apparent that you would predict to be writing Their lives and their stories are very these judges were viewing these as either this opinion or even the typical of almost any group of 25 or so legacy opinions. creationism one, yet, obviously, Pennsylvanians. They are us. And when So Judge Jones tackled this case after would you agree that this case I say that, what I mean is, we have a number of those opinions had been shows his independence? people from all corners of the state. We written. He is a remarkably good judge, I think it shows something much more have young and old. We have people on so many levels. But I wondered, than that. That it was one of the great who have children, people who want to what is Judge Jones going to do if he’s lessons, or great affirmations about our have children, people who don’t want going to go our way, what’s he going system of justice. to have children. We have people who to do? He wrote a brilliant opinion, I’ve been around way too long, and have good positions in business. We structured around the marriage vows. I know that the really great judges, have people who are stay-at-home. He took each vow and showed how the when they put those robes on, know We have people with advanced plaintiffs before him wanted nothing they stand for something profound and degrees and people who are sole more and nothing less than to make they dedicate their lives to the promise proprietors and entrepreneurs. We have the same public commitments married of our Constitution. Judge Jones proves women couples and men couples. We that. He’s just a great judge. have people who want to get married in Pennsylvania, because they love In short, we showed What else is there, if anything, Pennsylvania. We had an equal number how denying that you perceive happening of people who were married out-of- with the case after the Corbett state and want to be recognized in marriage rights administration decided not Pennsylvania. We had people of various to appeal, and an additional ethnicities and races and religions. We in Pennsylvania challenge was dismissed by the had a cross-section of Pennsylvania. Third Circuit? If you stop and do nothing more hurt people in the In early July, Justice Alito also denied a than read the first 15 or 20 pages of deepest sense, stay request from the Register of Wills the complaint, and if you’re a person from Schuylkill County, who tried with a beating heart and a semblance of in their humanity, to intervene after Governor Corbett rationality and fairness, and that’s just announced that the Commonwealth about everyone, you stop there and say, their integrity, their would not appeal. I’m not discriminating against these From day one after Judge Jones’ people. There is no reason under the respect and their order, the Commonwealth has been sun that I should have the right to marry dreams for their fulfilling its responsibilities and has and they shouldn’t. been implementing the order smoothly In short, we showed how denying children. And we and efficiently. They will be the first to marriage rights in Pennsylvania hurt say that all has been going very, very people in the deepest sense, in their showed this all from well. And marriages have happened all humanity, their integrity, their respect over the Commonwealth without any and their dreams for their children. And a place of real truth. revolution on the streets. we showed this all from a place of real So I think we will see throughout the truth. rest of this year the full implementation people make every day. He showed of the order. What we’re also going to Would you agree that the how they were living their lives in see, in a much more profound way, is diversity of the plaintiffs just those ways. So obvious and so an even higher level of acceptance for translated into what seems to basic, and he put it together in such same-sex marriage, and even more. be a unique opinion or form of an elegant manner. He ended with the As I have said many times, this opinion from U.S. District Court sentence that has been quoted all over case has helped demonstrate that Judge John E. Jones III? the country, a sentence that belongs in same-sex marriage is nothing to fear, Isn’t that amazing? How Judge Jones the annals of American constitutional and everything to celebrate. I see the crafted his opinion is amazing. history – that we’re better than these attitudes around discrimination in Amazing. He saw that there is laws represent and they belong on the housing, jobs, the daily private issues something that was going on here, ash heap of history. That is probably the we all have, shifting before our eyes. I across the country, since Windsor. We single most quoted sentence from all of think we’re going to see a lot of soul- were the first case filed after Windsor, these opinions. searching about why we do not have about a week after Windsor. Many laws that prevent all discrimination. lawyers around the country have Judge Jones was also the judge Some parts of our Commonwealth are modeled their cases on ours. As these who wrote the creationism already there.

the philadelphia lawyer Fall 2014 21 Go to the weddings, see what happens. If you want to know what love and joy and celebration mean, take a look, because that doesn’t diminish anything, that lifts us all.

Looking back and comparing when you were community, but in the community generally, that this was Chancellor, you dealt with high-profile issues, unfair. This wasn’t right. This shouldn’t be. I took on that including Judge Massiah-Jackson’s nomination to battle big time. I sensed every day, not only Judge Massiah- the federal bench, which became a hot-button issue. Jackson’s aspirations, but everything she was carrying and How would you compare them? representing. It’s a good question, because when you raise the Judge I remember the press conference with her, when it ended, Massiah-Jackson issue, while they’re different, they both and I was hugging her and crying, but it was crying out of touched at the core of who are we, and what kind of people sadness, profound sadness, that such a good person was treated we are or want to be. I’ve had a lot of major battles in my day, so poorly. But we fought a very significant and good fight. a lot. These are two that revolved around the most profound When this same-sex marriage case ended, last May 20, I questions of justice. also was crying, but I was crying out of profound joy. In each In Judge Massiah-Jackson’s case, there was this burning case, God gave me the privilege of being the leader of a battle question of the need for the fullest recognition of the talents of about people’s deepest aspirations. In one case, we came up African-American females in the legal profession. Remember, short, but it was a good fight and a lot of things changed for it came after national battles surrounding Anita Hill, Lani the better after that. In the other case, we came up victorious Guinier and others. When I was Chancellor, we had our version and a lot more things will change after that. of that battle. Judge Massiah-Jackson, by any definition, was Consider what was at the core of this case. This was about and is a very talented, deserving person, someone I knew from love, integrity, respect. Tell me what could be more worth almost the first day I started practicing law, who was being fighting for? And as lawyers, we watch other professions vilified. deal with those issues frequently. We watch clergy deal with There was this deep sense, not only in the African-American those issues and doctors, and lots of other people, artists and

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22 the philadelphia lawyer Fall 2014 intellectuals. To fight for those human political realm we’re operating in, as case would not have been successful values is just so elevating and life well as the communications and the if we weren’t able to explain to the affirming. media realm that go along with it. public what we were doing. There was Then, to go to the weddings, see the When Attorney General Kathleen a constant effort to try to make sure joy and love. I sat there, aside from Kane was considering not defending that people understood that everything when I could stop crying, and that this case, I did whatever I could to about marriage equality was something wasn’t very often, thinking about all help convince her that that was the to celebrate, and nothing to fear. those people out there, a diminishing right thing to do. I think she always number, who say that something about knew this was the right thing to do, What other lessons did you learn same-sex marriage is going to diminish she had the great deputies around her, from this case? the institution of marriage? Is going to in particular, Adrian King. I had been This case was a team effort, the take away something from heterosexual through similar decisions when I was smoothest I’ve ever seen. The team marriage? Go to the weddings, see what the city solicitor in Philadelphia, during that we had at the Hangley Aronchick happens. If you want to know what love the administration of Mayor Green. I firm was carefully assembled. Add in and joy and celebration mean, take a was able to offer a “been there, done the local and national ACLU lawyers, look, because that doesn’t diminish that” perspective. and Professor Kreimer, and you have a anything, that lifts us all. So I’d been through that fire. I murderers row that you don’t want to was able to support her and explain litigate against. Everybody on the team Aren’t these cases about the correctness and courage of her was as important as everybody else. It fairness, treating everyone fairly decisions. When I did, many members was one of the joys of this case. and equally, regardless of their of the media knew that I was speaking Whatever else comes my way, this differences? from a place of real experience. case always will mean everything in That’s our tradition. And, it is my With regard to the governor, I think a the world to me. The case, the law firm tradition. It’s my Jewish tradition. It is great deal of the lawyers that he had on that handled this case, the law firm that my late 1960s tradition. It is my family his side of the case, Bill Lamb and his supported this case, the team that we upbringing. colleagues in his firm, Jim Schultz, the had together, the judge who responded governor’s general counsel and Greg in the way that he did, the regard that You have been involved in many Dunlap, who is the head of litigation for people have and the opportunity to be political issues and battled the Commonwealth. They are people part of such an important chapter of our things over the years. This case I’ve known for a long time and people history. All of that means everything, had such issues, including a who I could talk to, even while we were everything. If nothing else happens, newly elected attorney general opposing each other. That continuous, this will be everything. who refused to defend the law, respectful and open dialogue helped in and a governor who had openly many ways. Daniel J. Siegel ([email protected]), opposed same-sex marriage, but Having the ACLU as partners also principal of the Law Offices of Daniel J. was running for re-election. How was critical. These are lawyers of the Siegel, LLC and the president of Integrated did these matters factor into the highest integrity, talent and respect. Technology Services, LLC, is a member of equation? You have to understand, there’s another the Editorial Board of The Philadelphia This case helped bring about a level on which we were operating, Lawyer. dimension of understanding of the and that was public education. This

the philadelphia lawyer Fall 2014 23 Family Court U nder One Roof Convenient Modern Setting Reunites FJD Divisions By Jeff Lyons hanese I. Johnson was blunt in her assessment of conditions at Family Court’s Domestic Relations Branch at 34 S. 11th St. S Johnson, a family law attorney and former chair of the Philadelphia Bar Association’s Family Law Section, has been in the Domestic Relations Branch almost every day since 1998. The building, faced with scaffolding and protective netting to shield pedestrians from falling debris, already has a very tense atmosphere inside. “Nobody’s happy to be there in the first place. Unless you’re doing adoptions, nobody’s ever happy,” Johnson said, who added that she and others who frequent the building have become “desensitized” to the conditions.

Between the tiny courtrooms, occasional building. It’s difficult for judges to practice fisticuffs in the waiting rooms and lack of there and it’s difficult for people to come services in the building, litigants visiting the there for the services on the dependency side building for the first time can be caught off and it’s difficult for the lawyers. It’s just not guard. “It’s not like the courts people are built for legal services,” he explained. used to seeing on TV.” The original legislation called for $200 But all of that is about to change for million for the construction of the new Family Court litigants, attorneys, judges building and Chief Justice Castille said the and staff. The gleaming new $200 million, project should be coming in $15 million 15-story Family Court building is set to to $20 million under budget. He said the open this fall at 15th and Arch streets. prime people that deserve credit are state “The cases Family Court deals with are Sen. Dominic Pileggi of Delaware County, sad cases,” said Pennsylvania Supreme who got the project into the capital budget. Court Chief Justice Ronald D. Castille. “This “And another person who deserves credit is will be a modern, clean, efficient and safe former Gov. Ed Rendell who really pushed facility for these sad and complicated cases for this project. He was aware of the need to be tried. It’s going to be a magnificent for the facility as a Philadelphian. When addition to the court system of Philadelphia. Gov. Corbett came into office, there was a And it’s one that’s long been needed.” critical time when we could have lost the “The location and the quality of the whole thing, depending on a decision that facilities will be the biggest differences for he made. Tom Corbett made the decision litigants, attorneys, judges and court staff,” to continue to work on this project,” Chief said Chief Justice Castille. “Juvenile Court Justice Castille said. over at 1801 Vine St. is a beautiful building, The new building features 29 courtrooms but it’s not really a modern courthouse. The and 544,000 square feet of space. other building at 34 S. 11th St. is a mess. Philadelphia Court of Common Pleas There’s no maintenance and it’s not really Family Division Administrative Judge built to be a courthouse because it’s an office Kevin M. Dougherty said the courtrooms

Family Court’s new location at 15th and Arch streets offers convenience to public transportation for litigants and employees. Image courtesy of Philadelphia Court of Common Pleas

are located on the third, fourth, fifth and who were involved with the creation moved to 1600 Walnut St. in January sixth floors. Domestic Relations and of those buildings to see if they had 1980. Domestic Relations moved its Juvenile courtrooms will be integrated any hindsight or assistance to try and complete operations to South 11th on the same floors. Below street level address every issue that would try to Street in 1991. “The splash at the time are three levels of parking with room advance us and so we would not run was that we were reuniting Domestic for more than 250 cars. A portion of across any future issues.” Relations. And the splash for this new those spaces will be allotted to Family Chief Justice Castille said that building is that we’re all together Court since the parking facility is run when the location for the building was again.” Added Judge Dougherty: by the Philadelphia Parking Authority selected, the judges were not included “We’ve been a fractured family.” and open to the general public. And in the planning. “When I took over the “When you walk into 34 S. 11th one of the major improvements will project in 2008, I said these two judges St., a sad situation becomes a horrible be access to public transportation for (Dougherty and Murphy) have to be situation because it’s so depressing. litigants. part of this. They live it, day in and And the whole process is heightened,” The new building also has public day out. They know what the problems said Judge Murphy. “The fact that and private access to Wi-Fi and there are better than some smart architect. you’ll be walking into a place that’s a will be AV throughout the courtrooms, They’ve been part of it from the start.” professional setting in a government so hearings can be held remotely, Judge Dougherty said Chief Justice building of which you’re proud, according to Majid Alsayegh, the Castille has been the champion of the certainly sets a tone that people at project manager. There will also be project. “He bears the scars, but he also 11th Street have been deprived of for services for the hearing impaired in all deserves the credit. We would not be many, many years. When you walk courtrooms. here today had it not been his tenacity. into the court facility, you should have “We’ve also tried to take into Judge Murphy and I were invited to a different impression of where you’re consideration the needs of counsel,” participate as a result of the Chief going and hopefully your behavior is said Judge Dougherty. He said there Justice taking control of this project.” going to change in accordance with the will be two attorney consultation The Vine Street courthouse was fact that you really are in a courthouse rooms attached to each courtroom. completed in 1941 and was built and it’s a different arena than you’re “We’ll have various consultation areas with funds from the Works Progress used to.” throughout every floor to assist with Administration. The courthouse, along Judge Murphy said now there’s no attorney-client confidentiality.” with the Free Library of Philadelphia, place for a person to get milk for a “It’s been an arduous process,” Judge were modeled after the Place de la child during a hearing day. That won’t Dougherty said of planning for the new Concorde in Paris. Chief Justice Castille be the case at 15th and Vine, where facility. “(Family Court Supervising said the building originally served as a vendeteria will allow visitors to Judge Margaret) Murphy and I have Municipal Court before there was a purchase milk, snacks and sandwiches worked really well with the private bar Philadelphia Family Division. In 1968, without leaving the building. “The as well as the public bar, both from the an amendment to the Pennsylvania vendeteria sounds like nothing, but it domestic relations side and the juvenile Constitution under the Judiciary Act means the world if you have that child justice side, to get input. We’ve traveled created the three main divisions of the and didn’t bring enough milk or forgot to New York City, Delaware and Philadelphia Court of Common Pleas. something. We have older people with Montgomery County. We’ve looked at Both divisions of Family Court were diabetes, who if they don’t get to have various courthouses that are state of housed at 1801 Vine St. until 1991, that little something to eat, can have a the art. We’ve gone back to our own when more space was needed. Judge real problem. These little things mean facilities at the Criminal Justice Center Murphy said a significant portion of a lot. Additionally, we’ll have areas to and City Hall to speak with the people the Domestic Relations Division was change diapers that are a much nicer

the philadelphia lawyer Fall 2014 27 “It’s all going to be in one location. It’s going to save a lot of people a lot of walking around Center City. It’s going to be very efficient. And cases will move faster as well,”

setting than we’ve ever had. I’m looking at it from the worst of because a lot of attorneys in this area are in juvenile because the world, having been there since we moved back in 1991.” of the kids and dependency because of divorce. Instead of Judge Murphy said some of the staff have had the opportunity traipsing back and forth, they’ll have all the facilities in one to visit the new building and they walk out so pleased they location. It’ll have the scientific resources attorneys need. can’t wait to get in there. “The Chief bought into the fact that There will be places for urine analysis, places for psychiatrists we needed this new building. While this is something that has and genetic testing. It’s all going to be in one location. It’s been talked about forever, it never happened. And it wouldn’t going to save a lot of people a lot of walking around Center have happened but for the steps that have been taken by Chief City. It’s going to be very efficient. And cases will move faster Justice Castille.” as well,” Judge Dougherty said. The discussions on a need for a new building first started There will be an enhanced child waiting area at 15th and after the move to South 11th Street in 1991. A Women’s Arch. “If the parents are called into a hearing a child is not Law Project report issued in 2003 found that the Domestic supposed to be present, the child can wait and be supervised. Relations Division “performed far below criteria set by the It will be a much nicer area for the children to wait than what Commission on Trial Court Performance Standards and made we have now. It’s hard to predict how many children we’re justice elusive for many of its users, in part because of its going to get each day,” Judge Murphy said. location in a building that was too small, difficult to navigate, “There’s a lot of anger in Family Court,” the Chief Justice and unsafe.” Judge Murphy said the depiction of 34 S. 11th said. “And when people come out of the new building they’re St. was so sad for the people who worked there because it going to get a message. And for that message, they just have depicted a less-than-stellar environment to litigate cases. “So to look across the park and it’s going to say ‘love,’ referring to therefore no matter how good your operation, the setting just the Love statue visible across the street. took you down. That was the beginning and it went nowhere fast,” she said. Jeff Lyons ([email protected]) is senior managing editor of “This new building is really going to help the lawyers out publications for the Philadelphia Bar Association.

28 the philadelphia lawyer Fall 2014 This frescoe is high above the bench in Courtroom B at Philadelphia Family Court at 1801 Vine St. Photo by Jeff Lyons

Where Have You Been Stuyvesant Van Veen? by Richard G. Freeman

ooking through an old journal recently I came across some his black robe filling the right panel of the scene.” notes I had made while sitting in Courtroom B of the Family What I recorded were the salient, Court building at 1801 Vine St. waiting for a case of mine to striking features of an untitled fresco, L a summary of the details of urban life gestate slowly from a position on the daily list to real trial. It seems and progress – or the lack thereof – by my faculties, unmoored after an hour or two of empty anticipation, the artist Stuyvesant Van Veen. It is one of 37 murals installed as frescoes had wandered to consider the details of the faded mural spread out throughout the 250,000-square-foot over the judge’s bench. To the uninitiated the following notes I building by the Works Progress Administration during the New jotted down will read like a message from the lunatic fringe. But the Deal administration of President cognescenti will recognize the subject matter: Franklin Roosevelt. These murals, distributed throughout the building, “(L. to R.) Adult male drifter in homburg – corner lounging depict idealistic scenes that today kid smoking while leading against a fireplug – four Dead End evoke nothing but cognitive dissonance when reflected kids engaged in a crap game – half-eaten apple competing against the subject matter paraded beneath them – pioneer in the gutter with discarded newspaper – headline on paper settlers in the Old West, Revolutionary War figures, mariners “I.D. KILLER IN..” – tenement – lamp post – delivery truck and tradesmen building commerce.1 They stem from an era unloading – two men fighting – three steelworkers fixing when Social Realism dominated artistic expression. Artists, girders – farmer baling sheaves of hay – carved heads of many supported by the WPA, strove to justify their vocation Jefferson-Lincoln–Franklin – floating in the ether like the by depicting New Deal goals and values in expressionistic Wizard of Oz underneath a mantle supported by an Ionic form. Perhaps the single work that emerged from that period column – a male figure (teacher?) points out the floating heads that endures is the exquisite and unique volume “Let Us Now to a dreamy-eyed African-American youth – a female figure Praise Famous Men,” which coupled Walker Evans’ stark at a desk – a medical doctor of old with the reflecting mirror photos of Midwestern farm families, many dispossessed by above his eye and stethoscope aided by a nurse examining the dust storms and foreclosure, with James Agee’s passionate bare torso of a white boy – three boys, one African-American, prose. The cryptic panel in Courtroom B has no apparent mount steps – the African-American boy has his hands out title, but hopeful titles abound among the other works spread in front of him – they seem to be appealing to the dominant throughout the building, such as the painting in the East figure in the scene – a white-haired Asian-American judge, Conference Room by the famed Benton Spruance showing a

the philadelphia lawyer Fall 2014 29

“Those frescoes are part of that building and city law requires that they be preserved in place.” family, a policeman on horseback, cars French-owned luxury hotel, would in traffic and a man and wife and called be removed and relocated to the new “The Strength of Democracy Abides courthouse building. The answer: with the Family.” never. Van Veen (1926-1988) was an According to prevailing reports the American muralist and realist painter plan is to install a luxury hotel in the and illustrator whose works proliferate Judge Nicholas Cipriani Building (who in public spaces throughout the knows: if developers play their cards Northeast. He contributed drawings right it could be another of the worldwide to left-wing publications such as “Cipriani” chain, unfortunately no “Dissent” and “New Masses.” His most relation to the late jurist). This raises celebrated work was a mural honoring the question just what role the social the Brooklyn Dodgers that reportedly realist frescoes would play in the décor can still be viewed in the Ebbetts Field of a luxury hotel. Or, to put the question Apartments in Brooklyn – the housing in the sharpest light, how can Van project erected over the land once Veen’s crap-shooting street thugs and occupied by the stadium where Jackie urchins complement one’s enjoyment Robinson starred. The Dodgers long of a Mojito in the cocktail lounge? ago left Brooklyn. Van Veen’s work For an answer I turned to Inga seems to be fated to be left behind Saffron, the Pulitzer Prize-winning A stained-glass window at Family wherever you find it. architecture critic of The Philadelphia Court at 1801 Vine St. Sometime this past spring, as the Inquirer. Saffron has been a steady Photo by Jeff Lyons legal world awaited the opening of chronicler of the birth pangs of the new the new Family Court building – the Family Court building. In addition to aquamarine cube rising at 15th and highlighting some eyebrow-raising has stood her ground. She, of course, Arch streets – I thought of the frescoes. hijinks among the individuals who laid is technically correct about the local What would happen to them once the the groundwork for its construction law governing historic preservation. Family Court building – currently (since alleviated), Saffron has pointed It would be very difficult – probably known as the Judge Nicholas Cipriani out that the construction budget ran dry requiring a court order – to export the Family Court Building – turned over to before money could be allocated for frescoes to the place where they belong. a new and different use? public art that would complement the In the meantime the art of a hopeful and Constructed in 1941 the Family building’s design, interior and – one idealistic era sits in place awaiting new Court and its older twin, the Free would hope – purpose. pairs of eyes and new states of mind. Library Building at 20th and the So I wrote Saffron suggesting Parkway (b.1927) – were designed that since we put a man on the moon Richard G. Freeman (rgfrim@gmail. as carbon copies of the Ritz Hotel we could remove the Family Court com), a sole practitioner, is a member of on the Place de la Concorde in Paris. frescoes and reinstall them inside the the Editorial Board of The Philadelphia Visually augmented by the Fountain new building where they would once Lawyer. at Logan Circle – the buildings serve again radiate their inspirational images as models in a picture-postcard scene. among the erring and accused and 1A 68-page “National Register of Historic So readers, art lovers and tourists alike deprived. Places Designation Form” submitted to the should be relieved to learn that the city Saffron, a known strict preservationist, U.S. Department of the Interior on August does not plan to tear them down and replied: “Those frescoes are part of 27, 2013 by John Milner Architects on behalf put up a parking lot. Worse. While the that building and city law requires that of the Pennsylvania Historical and Museum Free Library will be spared – indeed, they be preserved in place.” She added: Commission identifies and details the abundance expanded with a planned but long- “Our society should be able to produce of art in the building, including a spectacular 6’ delayed rear addition – the Family something specific to this building.” x 15’ elaborate stained glass panel in the elevator Court building is to metamorphose I expostulated: “But don’t you agree corridor designed by the Nicholas D’Ascenzo incongruously into a hotel. Which it is ludicrous to try to integrate into the Studios of Philadelphia; the studio’s work also brings me back to the frescoes. When wallpaper of a luxury hotel frescoes appears in the Folger Library in Washington , D.C. I learned of these development plans I depicting society’s efforts to cultivate The full report is available at wondered how and when the frescoes, its youth? Doesn’t make sense to me. “ http://www.nps.gov/nr/feature/places/ starkly out of place in the contemplated In further communications Saffron pdfs/14000097.pdf

the philadelphia lawyer Fall 2014 31 International Defense By Richard G. Freeman

ur world – from Filbert Street courthouse to Market Street courthouse, perhaps interspersed with a bold junket to West Chester – is too small for Alan Yatvin. Somehow this protean Opractitioner has balanced his role as a partner in the firm of Popper & Yatvin with meaningful appearances as defense counsel in the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague, representing defendants accused of crimes in the former Yugoslavia. For good measure Yatvin chairs the court’s Association of Defense Counsel Membership Committee. And last spring the globetrotting Yatvin was sworn in as a member of the Bar Association of the Kingdom of Cambodia, joining the list of international counsel at the Extraordinary Chambers in the Court of Cambodia (ECCC).

Loyal readers of The Philadelphia Lawyer will recall this It was Yatvin’s connection with the Yugoslavia tribunal that author’s account of his 2012 trip to Cambodia, which included led to his appointment to serve as standby counsel for a suspect a visit to the ECCC. Unlike the other incumbent war crimes under investigation in Cambodia. The identity of his client or genocide tribunals the ECCC was established by the and the nature of the investigation is treated as confidential by Cambodian court system with United Nations funding and the court, so he and I could not discuss whom he represents assistance. Hence, as Yatvin explained in an interview “The and what the theory of his defense might be. Cambodian courts use the French ‘civil law’ system, so there Yatvin, who is 58 years old is a graduate of Benjamin is something of a learning curve for someone like me coming Cardozo Law School, served as an assistant public defender from a common law system.” The French or civil system, in state and federal court before embarking on private practice Yatvin pointed out, depends on an investigating judge who with his longtime law partner Howard Popper, also a former is in charge of preparing the case and assessing whether it public defender. He has served as law clerk to judges of the should come to court. This system is known as inquisitorial, Court of Common Pleas. He is a man of moderate build and as opposed to the adversarial system used in common law active movement. In my experience Yatvin is one of the most legal systems. The Yugoslavia Tribunal uses a hybrid system, cheerful and welcoming of my brethren; he is always available with elements of both the common law adversarial and civil to offer guidance to other counsel. law inquisitorial systems, with the former predominating. So far Yatvin has only spent one harried week in Cambodia, The ECCC has moved slowly since it was established in the week in May when he was sworn in, oriented to the ECCC, the 1990s. Indeed, only four defendants have been tried, met his local team, travelled many hours to meet with his client including the commander of a brutal prison complex in near the Thai border and posed for the photos in domestic Phnom Penhn; he pleaded guilty and was sentenced to life. robe, scarf and bib required when appearing in Cambodian The evidentiary portion of the trial of Khieu Samphan – Pol courts. Then he returned to his local life representing clients Pot’s right hand man — senior party member Nun Chea, and in civil rights, police misconduct and special education cases. Khmer Rouge foreign minister Ieng Sary, began in 2011. For his current work Yatvin receives compensation from the Sary died during trial. Samphan and Chea were convicted United Nations Assistance to the Khmer Rouge Tribunals on Aug. 7 of crimes against humanity. Cambodia has chosen (UNAKRT) in accordance with guidelines formulated by the only to try the top leadership of the former Khmer Rouge, the “Defence Support Section” of the ECCC. crazed revolutionaries whose nation-building resulted in the Yatvin is an active model of professional self-sacrifice, deliberate deaths of 1.7 million people. serving as national chair of Legal Advocacy for the American

32 the philadelphia lawyer Fall 2014 Alan Yatvin appears before a tribunal in Cambodia. Photo courtesy of Alan Yatvin

Diabetes Association from 2010 - 2013. (He represents persons panel of international judges. There is constant work in the with diabetes in disability discrimination cases, particularly mean time and not all of it on Eastern Daylight or Standard students). He received the 2012 Thurgood Marshall Award Time. “I find myself waking up in the middle of the night from the Criminal Justice Section of the Philadelphia Bar realizing there is something on my email from Asia where it Association and the Court of Common Pleas’ 2010 Pro Bono is daytime,” he says. And he awaits another call from The Publico Award. Hague or Arusha, Tanzania, where the tribunal continues to Meanwhile, Yatvin and his wife Laura, a registered dietitian hear cases arising from the horrors of Bosnia, Serbia, Croatia and certified diabetes educator, have raised two sons in their and Rwanda. home in Overbrook Farms. “My wife knows I have a fever for travel,” he says, defending his flights to Europe and Asia. Richard G. Freeman ([email protected]), a sole practitioner, Yatvin awaits the next phase of the ECCC when he will is a member of the Editorial Board of The Philadelphia be called on to engage in real courtroom forensics before the Lawyer.

the philadelphia lawyer Fall 2014 33 Evidence Ohlbaum on By Mark C. Franek

I tramp a perpetual journey, (come listen all!) My signs are a rain-proof coat, good shoes, and a staff cut from the woods, No friend of mine takes his ease in my chair, [. . .] I lead no man to a dinner-table, library, exchange, But each man and each woman of you I lead upon a knoll, My left hand hooking you round the waist, My right hand pointing to landscapes of continents and the public road. Not I, not any one else can travel that road for you, You must travel it for yourself. —Walt Whitman, from Song of Myself

rofessor Edward D. “Eddie” Ohlbaum – beloved teacher, coach, writer, scholar, mentor, advocate, P friend – passed away in March of this year at the age of 64 after a battle with kidney cancer that he managed to shield from all but family and a few colleagues. All who came to know Eddie through his teaching and coaching came to respect him, many to love him. Over Eddie’s nearly 30 years at Temple University Beasley School of Law, thousands of students (including the author and contributor of this piece) took one of his classes to learn how to use the rules of evidence. And learn we did. We learned how to use the rules as a sword, or a shield, as the case may be. We learned about the power of wit and language; the importance of enthusiasm and integrity; and the joy inherent in the perpetual pursuit of self-improvement and excellence. We learned how to be better advocates, and, in the process, we learned how to be better people.

We arrived at his classroom door as bright-eyed 2Ls Eddie’s courtroom battlefields were littered with examples of confronting evidentiary issues for the first time; as students his evidentiary victories and his sense of humor. He reportedly in the Trial Advocacy Program, a paragon of the melding of remarked to one saturnine judge: Your Honor, my client is theory and technique that arguably catapulted Temple Law into guilty only of aggravated stupidity. the national limelight; as seasoned road warriors in National Eddie met his wife, Karyn Scher, four days after her 30th Trial Team, a group he personally molded and willed to five birthday, on Dec. 7, 1984. They were both coming out of national championships and 27 regional championships; serious relationships (Eddie, a first marriage), and they were and as veteran trial attorneys returning to sip once more at introduced by one of Eddie’s law school classmates, Ben the Pierian Spring, pursuing an LL.M. in Trial Advocacy. Lipman. Karyn recalls that Eddie did not endear himself Regardless of the program or time of day (morning, afternoon initially. “He challenged my career as a psychologist. In our or night), we were punctiliously greeted with Eddie’s natty first conversation, he made fun of Rorschach inkblots, and I goatee, his well-worn jeans, and, since about 2002, his earring. was thinking, ‘who is this guy wisecracking like this, making This was Eddie’s ensemble – a perfect counterpoint to his wry me defend my field?’ ” Later that evening, Eddie redeemed unforgettable smile and that twinkle in the eye. He rarely himself when he asked Karyn to dance. “Eddie was a very conducted class from a podium. He did not need a pedestal good dancer.” As the night wore on, he had Karyn and the or a soapbox. Instead, he crisscrossed the stage, wheedling remaining guests in stitches, inspired by a marathon comedy and cajoling each of us by name (after the first week of class), routine and maybe too much wine. “His humor and his brains teaching us to use the rules of evidence as tools to tell a story. won me over,” recalls Karyn. Through us, his teaching continues to The next Saturday night, Eddie cooked touch clients and colleagues. We are Karyn a seven-course Chinese meal, based scattered far and wide, literally around on a cooking class he had just completed. the globe. We are clear and convincing “Professor But Karyn was reluctant to meet him solo evidence of Ohlbaum’s enduring legacy. on a Saturday night for their first date. A native of New Rochelle, N.Y., Ohlbaum was Eddie was relentless. How ‘bout we put and the son of a lawyer, Eddie excelled in out the Wednesday newspapers and you’ll high school and earned his undergraduate responsible for think it’s a Wednesday? Eddie always degree at Wesleyan University in 1972. had a way with words and was very He also earned a Master’s Degree in planting the seeds passionate about what he was doing in Religion from Wesleyan in 1973. He of trial advocacy life. That energy and enthusiasm infused went on to earn his J.D. in 1976 from just about everything he did. Eddie and Temple, the institution to which he would in the hearts Karyn were married in 1990. Eddie was devote the majority of his professional fiercely loyal to Karyn, defending her not career. Eddie took two constitutional law of more trial only in casual conversation, but in the classes as a 1L. One class he took for courtroom. In a legal skirmish involving credit from a good professor; the other he lawyers than any a sizeable ticket for speeding in a school audited so he could learn twice as much. other person in zone, Eddie stayed up late, employing his Eddie was a lifelong learner, a voracious usual compulsive diligence, researching reader and a good athlete. He assembled Philadelphia” the configuration of the signage, the time a massive home library. He became of day and sun glare, distances between an accomplished tennis player and a the sign, the corner and Karyn’s car – seasoned baseball player, both endeavors which ultimately caused the case to be he pursued past his 60th birthday. Eddie adored his son Jake, thrown out. He liked to joke (and it was true) that when he today a junior at the Berklee School of Music. It gave Eddie presented the facts, the judge looked at the traffic cop and the greatest pleasure to travel to watch Jake perform. Eddie said, “I think he’s got us!” was totally devoted to his family, and a tireless “Brooklyn” After the Defender Association and a stint in Temple’s Dodgers fan. Forgive us these upcoming Eddie-isms in italics, Office of University Counsel, Eddie moved to full-time but What’s that got to do with the price of onions? Context, teaching, in 1985, where he would remain. Carl Singley, then- Eddie, context. Just as you taught us: You gotta set the table. dean of Temple’s Law school, wanted Eddie to build up what After law school, Eddie honed his trial skills at the Defender was then a very modest trial advocacy program. According to Association for about seven years, where he almost never lost Robert Reinstein, former dean of the Law School and longtime a case. He tried about 75 jury trials involving major felonies friend, “Hiring Eddie was one of the best decisions that any and hundreds of non-jury trials. He was often assigned to the dean of Temple Law School ever made. No one did more toughest cases, and he earned accolades from prosecutors as than Eddie Ohlbaum to make Temple a great law school.” well as judges. He was an exceptionally gifted trial attorney. Dean JoAnne Epps, the current dean, remarks, “Eddie was a For a big trial, it would not be uncommon for him to sleep person of enormous integrity. That was his lodestar. He was only a few hours a night and lose 10 to 15 pounds. He hated to incredibly smart, and he had the intellectual capacity to bring lose as much as he loved to win, a fierce competitive spirit that about the kinds of things he wanted to see. He also wanted to would later drive his efforts, year after year, with the fortunate help people. There was no limit to what he would do on behalf members of Trial Team. During his public defender years, of the people he was devoted to, whether his clients or his

36 the philadelphia lawyer Fall 2014 students.” from recent headlines – to hammer and recent Law School graduate. “If “His dedication to the school was home a point. The vignettes never got we had an opinion or a perspective that phenomenal,” says David Sonenshein, old. Students would inevitably change differed from his, he would hear us friend and fellow law professor. “He the facts and re-cast a question, “How out. He would give us an opportunity was totally involved, always looking would a court rule and why?” Eddie to explain to him – to prove – why we for ways to improve. I could say would work through the problem were right and he was wrong.” “Eddie’s ‘irreplaceable,’ in the sense that I’ve with the student, based on the new most beloved and often repeated lesson never met anybody quite like him.” fact pattern, employing the Socratic was that the goal of every advocate is Eddie propelled hundreds, if not method. He “danced” with the student to win the confidence of the court,” thousands, of skilled attorneys into and other students, as they entered says Caroline Power, another recent practice in Philadelphia and around the the conversation, teasing out the graduate and member of Trial Team. world. You’re going to look good doing problem and a court’s likely response. “That meant always working to win the it. One of Eddie’s first students in those Sometimes Eddie would go off script, confidence of Eddie Ohlbaum. It wasn’t early years was Mitchell S. Goldberg, take a chance, utter something the dean about a grade or a recommendation; now a federal judge in the United States would not want to hear. $%@#! Thank it was about earning that look – arms District Court for the Eastern District God I have tenure! Students often left crossed, leaning back, nodding his head of Pennsylvania. “I first became close with his eyebrows raised – the look that with Eddie Ohlbaum in 1986, during said, ‘not bad, Power. Not bad.’ ” For my third year of law school, when he many more comments and anecdotes asked Andy Stern and me to serve as about Eddie, see the Law School’s the first Temple Law School trial team. tribute-blog at http://www.law.temple. Back then, there were no tryouts, no edu/SitePages/Ohlbaum-Tribute/ ‘trial team boot camps’ or multiple default.aspx, which contains, as of trial teams with individual coaches, this writing, more than 100 accounts as there are now. We had little more from students, former students and than a few days to get ready.” The duo colleagues – the closest example of was a bit unprepared and outmatched, judicial notice outside of a courtroom. but advanced through more rounds Katy, bar the door! than anyone expected. “When all was Eddie also found time to be a writer said and done, and we told Eddie the and a scholar. He wrote “Ohlbaum on outcome, I thought I could actually see the Pennsylvania Rules of Evidence,” a light bulb go off in his head.” And an erudite treatise and favored guide for we’re off to the races. Over the next advocates and even judges. According three decades, Eddie, with help and to some very accomplished trial support from a great number of others, attorneys, Eddie Ohlbaum didn’t know built one of the top trial advocacy everything about the rules of evidence programs in the country, with the Trial and the calculus of courtroom decisions. Team as the jewel in the crown. Judge Yet, when the judge and jury were out Goldberg reflects, “Eddie was the of the courtroom for recess, the tipstaff inventor, the general, and the genius and court reporter (including the author behind it all.” Reinstein notes, “He of this tribute) would often spy the brought the same passion, dedication, accomplished trial pro picking through drive and brilliance to developing this a dog-eared copy of “Ohlbaum” at program as he had to trying cases. class with a deeper understanding of a counsel’s table. “Professor Ohlbaum It was Eddie who transformed the particular rule of evidence, its nuances, was responsible for planting the program into one of the best—if not the and the power of proper technique. Yet seeds of trial advocacy in the hearts best—in the country.” when a bright student took a newly of more trial lawyers than any other It is difficult to describe a typical learned rule and bent or broke it, to get person in Philadelphia,” remarks Jerry class with Professor Ohlbaum. He one past the judge, Eddie would say: Lehocky, immediate past president was always appearing, suddenly, out You’re better than that. of the Pennsylvania Association for of some law school corridor, like a Eddie taught integrity and his own Justice (formerly Pennsylvania Trial better-looking Yoda. And each class brand of humility before the tribunal – Lawyers Association). “He has helped was different. It did not matter whether he taught his students to be zealous but mold and shape the careers of some of the setting was a large lecture hall, a never a zealot. His mind, enthusiasm the best trial lawyers this country has seminar room or the anteroom to his and eloquence drew out the best in his ever seen.” Nancy Winkler, immediate office, which he affectionately called students. “Eddie treated us like adults. past president of the Philadelphia Trial his “shop.” During a lesson, he often I felt as though I was his colleague, Lawyers Association, mourns the loss jumped right into the rules, using even though I was the student,” offers and celebrates his legacy. “To honor prepared vignettes – or stories hewn Brittne Walden, member of Trial Team Eddie’s memory, the Association will

the philadelphia lawyer Fall 2014 37 be dedicating one of its luncheon lectures each year and taught rhyme and rhythm and technique, and he had fun doing naming it ‘The Eddie Ohlbaum Trial Advocacy Lecture.’ ” it. Ippity boppity boop! He taught character and charisma, Eddie was a trusted resource for many judges. “His training integrity and generosity of spirit. These lessons were no sessions were always alive and full of crazy fact patterns, and mere shadows on his classroom wall. Eddie was committed the judges never wanted to miss it,” recalls Judge Annette M. to the Support Center for Child Advocates, the Pennsylvania Rizzo, of the Philadelphia Court of Common Pleas. “He really Innocence Project, and his synagogue, Beth Am Israel – whole understood the complexities of adjudicating thorny issues. swaths of life and human connection unexplored here. He He was enlightening, instructive, entertaining and, well, just fought for the underdogs throughout his professional career. plain Eddie.” “Eddie was a friend and an occasional sounding As a teacher, he helped generations of students to become board,” offers Judge Teresa Sarmina, also with the Court of “bold swimmers.” We forgive him his occasional annoying Common Pleas. “I still can’t believe he’s gone.” habits and swagger. We pine for just one more class, one more “Along with Phil Restrepo and Mitch Goldberg, I had the conversation, one more argument with the Professor: privilege of spending a few hours with Eddie two days before You are also asking me questions and I hear you, he died. He was in his office – working as usual,” recalls I answer that I cannot answer, you must find out for Timothy Rice, magistrate judge for the United States District yourself. [. . .] You must habit yourself to the dazzle of the Court for the Eastern District of Pennsylvania. “Watching over light and of every moment of your life. him were hundreds of students from the mock trial program, Long have you timidly waded holding a plank by the each depicted in a framed photograph on his wall. These shore, were the kids raised in the trial program he birthed nearly 30 Now I will you to be a bold swimmer, years ago. One by one, Eddie regaled us with their stories.” To jump off in the midst of the sea, rise again, nod to Eddie’s wife, Karyn, would say that Eddie “kvelled” (Yiddish me, shout, and laughingly dash with your hair. for expressing great joy and happiness – like for a child) —Walt Whitman, from Song of Myself over his students who went on to accomplish great things. Nothing gave Eddie more pleasure than to witness and help Mark C. Franek ([email protected]) is an associate his deserving students along the road to a flowering career. with Stevens & Lee. May Mon Post (MPost@dmvlawfirm. Outside the love of family, there is nothing in this world com), an associate with Deasey, Mahoney, and Valentini, Ltd., more satisfying and lasting than the love and respect of a great and former editor-in-chief of The Philadelphia Lawyer, also teacher. Eddie taught not just rules, or rules about the rules; he contributed to this article.

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the philadelphia lawyer Fall 2014 39 Lawyers, Golf Pros and Statisticians By William J. Maffucci

ine times out of 10, when someone says something • Another stroke on the approach shot because the wind moved my ball happens “nine times out of 10,” it doesn’t happen perceptively after I had addressed it and that often. before I hit it (Rule 18.2(B)); and N • Two strokes for making the “birdie” putt I know what you’re thinking, and you’re right: The sentence without first removing the flag stick, and above is dilemmatic. If it’s true, then chances are 90 percent that then proceeding to the next hole without first removing the pin and reputting (Rule it’s false. Perhaps. But of this I’m sure: Statements that things 17.3(B)). occur “nine times out of 10” are very often exaggerations. I’m Again, I know what you’re thinking (at least if you play golf): Nobody applies any of tempted to say they’re exaggerations more often than not, but those rules unless they happen to be playing then you might say that, if that’s true, my initial statement in a tournament, and even in tournaments (except the kind on TV) those rules are often is more likely than not to be an exaggeration. No need to go waived or unenforced. But I’m a lawyer, and there. I think you get the point. therefore I’m not allowed to bend the rules, let alone ignore them. And, besides, my point isn’t about the integrity of recreational It was a golf pro who got me thinking about all this. It was golfers. I’m just trying to explain how one golf pro’s gross triggered by an off-hand remark he had made in a conversation exaggeration got me thinking about the rate at which things after I had just finished a round. I asked him whether I had said to occur “nine times out of 10” actually occur. scored one of the holes correctly. He explained the applicable The more I thought about it, the more I realized that the rule and pointed out that, because I didn’t know the rule, I had problem wasn’t limited to statements that things happen added an unnecessary stroke to my score. That surprised me, 90 percent of the time. It seemed that most statements of but the pro said I shouldn’t have been surprised. “That’s the incidence, particularly statements that a certain percentage of thing about the Rules of Golf,” he explained. “Nine times out the population have a specified condition or have experienced of 10, the rules that golfers don’t know would actually help a specified event, are overstatements. Sometimes gross them.” overstatements. Now I am an excellent golfer, but I am trapped inside a very I acknowledge that I am not qualified to quantify bad golfer’s body. So I was thrilled to hear that I could lower probabilities. But my neighbor Tim is. He’s an actuary, so I my score – 90 percent of the time! – simply by learning all of asked for his help. After a few Scotches, he was happy to give the rules of the game. I bought a copy of the Official Rules it. of Golf on the spot, and I settled in that night with a glass of Tim pulled out his calculator. I showed him a list of all scotch to read them. the “incidence” statistics that I had heard on reputable news Huge mistake. Far from helping my score earlier in the day, media over the prior week. We winnowed out those that the rules repeatedly and mercilessly penalized me. regarded related matters, and we selected quantifications as Take just the first hole, an uncomplicated par four. I thought to the incidence of independent conditions or events: lactose I had birdied it: 235-yard drive; 6-iron to within four feet; intolerance (20 percent), residence in a gated community dropped the putt. But as I read the Rules of Golf the “3” on (14 percent), affliction with a compulsion (known as my card transmogrified into an “12.” I was obligated to take trichotillomania) to pull out one’s own hair (14 percent), nine penalty strokes: affliction with “restless-leg syndrome” (5.5 percent), and a • Two strokes for asking a fellow competitor whether she belief that one has been abducted by extraterrestrial aliens (2 was using a driver on the tee (Rules 8.1 and 8.4); percent). • Two strokes for responding to her request for the same Tim then calculated a “blended” percentage – 45.2 percent. information from me (same); If the statistics are accurate, he explained, we would expect 45 • Two strokes for moving my ball slightly with my club out of 100 of poll respondents to answer “yes” to at least one head, before my approach shot, just to be sure the ball was of the following questions: actually mine, and not moving it back before I hit it (Rules • Are you lactose-intolerant? 20.1(B)(1) and 20.3(E)); • Do you live in a gated community?

40 the philadelphia lawyer Fall 2014 The responses came in, first as a trickle and then as a torrent. It quickly became clear that my “statistics-are-usually- exaggerations” hypothesis was correct.

• Do you suffer from a compulsion to The responses came in, first as a they, or at least some of them, aren’t pull hair off your body? trickle and then as a torrent. It quickly nearly as common as the statistics • Do you suffer from restless-leg became clear that my “statistics-are- proclaimed. syndrome? usually-exaggerations” hypothesis And if you’re a statistician, please • Have you ever been abducted by was correct. Far from the 45.2 don’t send me angry emails pointing extraterrestrial aliens? percent affirmative responses that out any perceived flaws in my I distributed that questionnaire to more Tim’s calculations predicted, only methodology (e.g., plying my actuary than 100 Americans selected randomly. 15.8 percent of the respondents said with scotch). Remember, I’m a lawyer, To eliminate the embarrassment they would answer yes to any of the so I’m entitled to the last word, and it’s factor, I allowed them to respond questions. usually a swift and sharped-tongued anonymously, and I assured them that Please don’t misunderstand: My riposte. I may not be right, but I’m I was not interested in knowing which feeling of vindication does not betray relentless. Nine times out of 10, that’s condition or experience, if any, applied any failure to appreciate that lactose all it takes. to them. Instead, I wanted them to let intolerance, entrapment in a gated me know, each with a single “yes” or community, trichotillomania, restless- William J. Maffucci is a Philadelphia “no,” whether they would answer yes leg syndrome, and alien abductions can lawyer. Don’t send angry emails to him to at least one of the questions. be serious matters. I’m just saying that at [email protected].

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the philadelphia lawyer Fall 2014 41 TTechnechnololoogogygyy Pixel Perfect Practice Professional Guidance Opinions Address Social Media Issues

BY Daniel J. Siegel

hen Bill Maher quipped, “Can we go back to using W Facebook for what it was originally for – looking up exes to see how fat they got?” he had no idea how many lawyers would agree with him. Whether it is the story of a client admitting some wrongdoing on social media, or a client posting photos showing herself performing an activity wholly inconsistent with her claimed physical limitations, the result is the same: Their cases just became much harder to prosecute or defend. Social media, the plethora of percent of adults age 18 and over use case from the client’s Facebook websites that permit users to join these sites. page. online communities where they can Fortunately, the Philadelphia Bar (3) Whether a lawyer who receives share information, ideas, messages and Association Professional Guidance a request for production of other content, is changing not only our Committee has authored Opinion documents must obtain and clients’ lives, but also the way lawyers No. 2014-5, addressing some of the produce a copy of a photograph must practice. If there was any doubt, obligations lawyers have relating to posted by the client, which the the Pennsylvania Supreme Court’s their clients’ use of social media. In this lawyer previously saw on the November 2013 adoption of a Comment opinion, the Committee was asked to client’s Facebook page, but which to Pa. RPC Rule 1.1 (“Competency”) address four questions: the lawyer did not previously print leaves no doubt. The comment states that (1) Whether a lawyer may advise or download. For the purposes of “To maintain the requisite knowledge a client to change the privacy this inquiry, we will assume that and skill, a lawyer should keep abreast settings on a Facebook page the request is not overly broad. of changes in the law and its practice, so that only the client or the (4) Whether a lawyer who receives including the benefits and risks client’s “friends” may access the a request for production of associated with relevant technology.” content. This question assumes documents must obtain and For many lawyers, this change means that all information relevant or produce a copy of a photograph that they no longer can claim ignorance discoverable in the client’s matter posted by someone other than the when technological issues arise. And is retained. client on the client’s Facebook they do. Clients use social media. Boy, (2) Whether a lawyer may instruct page, which the lawyer previously do they use social media. According a client to remove a photo, link saw on the client’s Facebook to Pew Research Internet Project, as or other content that the lawyer page, but which the lawyer did not of September 2013, an estimated 73 believes is damaging to the client’s previously print or download. For

42 the philadelphia lawyer Fall 2014 Social media, the plethora of websites Tech briefs that permit users to join online Smartwatch Wars communities where they can share Escalating information, ideas, messages, and other content, is changing The next battle in Apple vs. Everyone Else is not only our clients’ lives, but also the taking shape in the form of smartwatches. Apple way lawyers must practice. unveiled its Apple Watch in September (above) and plans to begin selling it in early 2015. There are several Android the purposes of this inquiry, we representation under Rule 1.1, a lawyer compatible smartwatches out there, and will assume that the request is not should advise clients about the content there’s talk that Microsoft will enter the overly broad. of their social media accounts, and market sometime soon. The Committee answered the their obligation to preserve information The rectangular Apple Watch is available questions as follows: that may be relevant to specific in three models – Watch, Watch Sport (1) A lawyer may advise a client to proceedings.” The Committee further and Watch Edition. The differences are change the privacy settings on the explained that, although a lawyer may with the bands and cases. The device’s client’s Facebook Page. counsel a client to restrict access to their crown (the thing on the side that you (2) A lawyer may instruct a client to social media information, i.e., changing use to adjust the time on a regular make information on the social a client’s profile to “private,” which watch) allows users to scroll and zoom. media website “private,” but may simply restricts access to the content of Apple uses multiple technologies to keep time within 50 milliseconds of the not instruct or permit the client to the page, it may not permit her to delete definitive global time standard. And it delete/destroy a relevant photo, or permanently destroy the evidence. can automatically adjust to the local link, text or other content, so that Of note, the opinion highlights some time when traveling. Sensors on the it no longer exists. recent decisions, all of which have a back of the watch deliver a gentle tap (3) A lawyer must obtain a copy of a common thread: if the requesting party when you get a text message or email. photograph, link or other content can demonstrate that the social media The activity app measures how long posted by the client on the client’s pages contain potentially relevant you’ve been moving, how long you’ve been sitting still and can keep Facebook page in order to comply information, the requesting party will track of how many steps you with a request for production or be able to access it. Conversely, most take. And there are range of other discovery request. courts have not permitted a party to go watch faces to choose from (4) A lawyer must make reasonable on a fishing expedition. along with functions you efforts to obtain a photograph, For lawyers who don’t think this can add on. The Apple link or other content about which applies to them or their clients, think Watch starts at $349. the lawyer is aware if the lawyer again. In March 2014, the Commercial One of the best looking knows or reasonably believes and Federal Litigation Section of the Android watches out there it has not been produced by the New York State Bar Association released has to be Motorola’s Moto client. its “Social Media Guidelines,” which 360 (right). This beautiful The opinion addresses many of the concluded that a lawyer may advise a round watch just looks like an concerns lawyers and clients commonly client about the content of the client’s expensive timepiece. The crystal is made from Gorilla Glass to prevent confront, and provides a broad social media page, to wit: scratching and damage. overview of the issues, with the strong • A lawyer may advise a client as to recommendation attorneys examine the what content may be maintained or And talk about smart. Moto 360 sends Rules carefully and understand that, as made private on her social media you notifications based on what you’re social media evolves, so will the ethical account, as well as to what content doing and where you are. You can get issues related to it. may be “taken down” or removed, Android-wear powered traffic reports, weather forecasts and flight information. But interestingly, as I have always whether posted by the client or The device’s voice control allows you to said, dealing with clients and social someone else, as long as there is send text messages, ask for directions media is similar to dealing with any no violation of common law or any and check the weather. The 360 also other evidence regardless of form, statute, rule, or regulation relating to features a built-in heart rate monitor i.e., discoverable information may not the preservation of information. and pedometer. And Moto 360 has a be concealed or destroyed regardless • Unless an appropriate record of the growing number of apps it works with, whether it is in paper, electronic or some social media information or data is including Facebook Messenger. You can customize your Moto with one of six other format. preserved, a party or nonparty may digital watch faces. The $249 price tag The opinion notes that, “as a general not delete information from a social includes a wireless charging dock. rule, in order to provide competent media profile that is subject to a duty

the philadelphia lawyer Fall 2014 43 One of the highest-profile cases arose in Virginia, which suspended an attorney for five years for instructing his client to delete certain damaging photographs from his Facebook account.

to preserve. the photographs from opposing counsel; media account, including the account’s The Philadelphia Bar Committee and withholding from the trial court the privacy settings. However, a lawyer may agreed with this conclusion, which is emails discussing the plan to delete the not advise a client to delete or destroy consistent with Rule 3.4(a)’s prohibition information from the client’s Facebook any information that has potential against “unlawfully alter[ing], page. The Virginia State Bar Disciplinary evidentiary value. Finally, in order to destroy[ing] or conceal[ing] a document Board based the suspension upon the comply with a request for production of or other material having potential attorney’s violations of Virginia’s rules documents, a lawyer must provide all evidentiary value.” Consequently, a on candor toward the tribunal, fairness information that the client has posted if lawyer is not permitted to instruct a to opposing counsel and misconduct. the lawyer is aware that the information client to alter, destroy or conceal any In addition, the trial court imposed exists.” relevant information regardless whether $722,000 in sanctions ($542,000 upon Sorry Bill. The days when we went that information is in paper or digital the lawyer and $180,000 upon his client) online and searched merely to gloat form. A lawyer may, however, instruct to compensate opposing counsel for about how much better our lives are a client to delete information that may their legal fees. compared with our exes’ are over. be damaging from the client’s page, but Opinion 2014-5 highlights the fact must take appropriate action to preserve that the days of ignoring social media are Daniel J. Siegel ([email protected]), the information in the event it should gone. No matter what form the evidence principal of the Law Offices of Daniel J. prove to be relevant and discoverable. is in, the Rules of Professional Conduct Siegel, LLC and the president of Integrated One of the highest-profile cases arose apply in the same way that they apply Technology Services, LLC, is a member of in Virginia, which suspended an attorney to other forms of information. Thus, the Editorial Board of The Philadelphia for five years for instructing his client and as the Committee concluded, “A Lawyer. to delete certain damaging photographs lawyer may advise a client about how to from his Facebook account; withholding manage the content of the client’s social

44 the philadelphia lawyer Fall 2014 Tech UPDATE

Apple iPhone 6 Samsung Galaxy S5

Apple has finally released its long-awaited iPhone 6, along with big- ger sibling 6 Plus. The biggest difference over iPhones past is screen size, with 4.7-inch and 5.5-inch models available. They’re also thinner than ever. Samsung’s Galaxy S5, at 5.1 inches, has a beautiful display, screaming fast processor and a terrific camera. It boils down to operating systems – are you a Mac or an Android?

Features Apple iPhone 6 Samsung Galaxy S5

Screen size (diagonal) 4.7 inches 5.1 inches

Resolution 1334 x 750 pixels 1920 x 1080 pixels

Digital zoom 3X 4X

Video recording resolution 1080p HD video recording 3840 x 2160 pixels

Dimensions 2.64” x 0.27” x 5.44” 2.9” x 0.3” x 5.6”

Weight 4.55 ounces 5.1 ounces

Battery Life Up to 11 hours (WiFi) Up to 13 hours (WiFi)

PRICE $199 (16GB model) $199

the philadelphia lawyer Fall 2014 45 Book Review By M. Kelly Tillery Rock and a Hard Place The “Hard Choices” Made by the 67th U.S. Secretary of State

Hard Choices diplomacy. G.M. Young in “Early Written by Hillary Rodham Clinton Victorian England,” 1830-1865 596 pages (1934) described diplomatic history $35, Simon & Schuster, 2014 as merely “what one clerk said to another.” Whether it ever was only that, Hillary’s adventures make hen Hillary Clinton was clear that it is now so very much in Philadelphia recently more – a veritable cauldron of W at a book signing, my characters resembling the bar scene friend Katie, waiting to get her copy in “Star Wars” with a wide variety signed, texted me for a good line to of conflicting histories, values and use when she met her. I suggested interests. that after she signed, say, “Thank She claims not to have decided you, Madame President.” And when to run for president, but we all she chuckled, Amy Poehler-like, say, know that to be a quaint fiction “Just thought that sounded perfect.” dictated by our fickle campaign Katie did. Hillary said, “Thank you laws. Although not a traditional for that!” campaign biography, it is clearly As a cultural icon on the order of intended to evidence that she has Cher, Madonna and Beyoncé, she the wisdom, experience, energy, signs only “Hillary.” respect and gravitas to be the next Though it touches on prior and and first woman president of the post aspects of her remarkable United States. And it does so, quite life, her 596-page volume covers nicely. only her time as this nation’s 67th Her writing style is, however, Secretary of State from 2009-2013, rather pedestrian, sometimes during which she visited 112 other wooden – “Hard men present nations, logging more than 1 million hard choices – none more so then miles. While it is dwarfed by Bill’s Vladimir Putin…” Somewhere in 957-page tome, “My Life” (Alfred the San Fernando Valley right now, A. Knopf 2004), to be fair, his covers to be revealing or controversial. An you know some enterprising director is almost 15 times as many years. immediate past Secretary of State shooting a porn parody. Although “Hard Choices” is also no and presidential candidate could not Hillary’s thoughtful and measured “Present At The Creation” (W.W. Norton possibly be so, consistent with law, logic discussion of Benghazi should finally 1969, winner of 1970 Pulitzer Prize), and good taste. It is, however, a vastly silence any rational, sincere critic. coincidentally, Hillary was inspired by more impressive work than any of the Unsurprisingly, the largest portion, its author, the 51st Secretary of State, pre-campaign books of any successful, almost 30 percent, covers the Middle Dean Acheson, when they met the year much less unsuccessful, presidential East, including the Arab Spring in of its publication, just before he spoke at candidate in my adult life. Think George Tunisia, Libya, Syria and Egypt, the her Wellesley College graduation. W. Bush, “A Charge To Keep;” Barack eternal Israeli-Palestinian conflict, and Be forewarned. This is a memoir of a Obama, “Dreams Of My Father” or Iran and nukes. United States Secretary of State. While “The Audacity of Hope;” Jimmy Carter, Oddly, Iraq merits no separate chapter one reviewer called it “Fifty Shades of “Why Not The Best?” or Richard Nixon, or section. Though she bravely admits Boring,” it is only so if you have no or “Six Crises.” her vote on Iraq was an error and that little interest in diplomacy and/or this Although it starts slowly and seems, she “… came to deeply regret giving nation’s role in an ever-shrinking, inter- at first, to be a travelogue or review of President Bush the benefit of the dependent, volatile global community. her Outlook calendar, it soon delves into doubt…” No reader should expect this work the delicate intricacies of international Afghanistan and Pakistan are rightfully

46 the philadelphia lawyer Fall 2014 Unsurprisingly, the largest portion, almost 30 percent, covers the Middle East, including the Arab Spring in Tunisia, Libya, Syria and Egypt, the eternal Israeli-Palestinian conflict, and Iran and nukes.

dealt with together, though she fails to course, Hillary ends with serious, though this nation, including those of “the vast directly address the fact that the two are not Biden-like stridence, discussion of right-wing conspiracy” would do well to joined because both are unstable, have climate change, humanitarian aid, the pick up this book. radical militants who live in the Middle role of technology, trade and energy and Absent some new, real scandal of Ages and hate the U.S. and, crucially, human rights. Nixonian proportions and/or further Pakistan has nukes. Lest you make the mistake of thinking Supreme Court-approved voter Europe, Russia, Latin America and Hillary an intellectual lightweight, read suppression, Hillary Rodham Clinton Africa are covered in somewhat cursory the “New York Times Book Review” may just be the 45th president of the fashion, as are China and Asia, with column “By The Book” Q and A with United States. an unexpected and fascinating detour her regarding the depth and breadth into Burma (Mynamar). Her portrayal of her reading. (nytimes.com/books M. Kelly Tillery (tilleryk@pepperlaw. of China’s less-than-stellar record on 6/15/14). I have read “Going Rogue” com), is a partner with Pepper human rights has already earned a ban in (Harper Collins, 2009) and Hillary is no Hamilton LLP, and Editor-in-Chief of the Middle Kingdom. Sarah Palin. The Philadelphia Lawyer. To maintain political balance, of Anyone interested in the future of

2014 LAWYERS ON THE FAST TRACK AWARDS DINNER Featuring Pennsylvania’s Finest Attorneys Under 40 Thursday, November 6, 2014 The Crystal Tea Room, Wanamaker Building Philadelphia, PA Cocktail Reception and Awards Dinner 6:00-8:30 PM

To purchase tickets or to inquire Sponsors: about sponsorship opportunities, contact Lana Ehrlich at (215) 557-2392 or [email protected].

the philadelphia lawyer Fall 2014 47

2013 LAWYERS ON THE FAST TRACK AWARDS DINNER Featuring Pennsylvania’s Finest Attorneys Under 40 Thursday, November 7, 2013 The Crystal Tea Room, Wanamaker Building Philadelphia, PA Cocktail Reception and Awards Dinner 6:00-8:30 PM

To purchase tickets or to inquire Sponsors: about sponsorship opportunities, contact Lana Ehrlich at (215) 557-2392 or [email protected]. 1984 That Was Then

Bench-Bar & Annual Conference 1984

Nearly 800 Philadelphia lawyers and their guests attend the Friday opening luncheon for the Bench-Bar & Annual Conference.

Hon. Norma L. Shapiro of the U.S. District Court for the Eastern Phyllis Diller’s contagious laugh lights up the Saturday District of Pennsylvania enjoys our first-ever walk-around dessert night dinner show with a mega-kilowatt kick. party at the Bench-Bar & Annual Conference.

48 the philadelphia lawyer Fall 2014