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Newspapers across the country have been fervently putting out stories about the Penn State scandal, as they should.

In Monday's Inquirer, in a front page article written by David O'Reilly (11/14/11 'PSU Scandal Expected To Prompt Laws") the report was mainly about the fact that the Pennsylvania Legislature is quickly revamping laws regarding the criminality of non reporting of child abuse. I found one portion of the article  particularly interesting however.

Some also voice hope that their colleagues will take another look at proposals already on the table, including a right-to-sue bill for abuse victims that is stalled in committee....Several lawmakers have scheduled a news conference for noon Tuesday in the Capitol rotunda to demand action on various abuse-related bills.Among them will be Rep. Michael McGeehan (D., Phila), who introduced a bill in March that would give all victims of child sex abuse a two-year window of opportunity to sue their assailants. Many adults who were abused as children are barred from suing because the statute of limitations on their assaults has expired.The current Republican chairman of the judiciary committee and the previous Democratic chairman have both refused to hold hearings on McGeehan's bill or bring it up for a vote.

In an era when "right to sue" laws are shunned by the political right, in a state that has a Republican Legislature and Governor, this was welcome news. Under present laws in Pennsylvania, the statute of limitations, the time in which one must file suit or be forever barred from doing so, is two years from the date of the offending incident. In a car accident case, the statute of limitations is two years from the date of the accident. in a medical malpractice case, the statute of limitations is two years from the date of the medical care which caused injury to the patient. These are hard and fast rules. The only exception is for minors, who have two years from their 18th birthday to file suit against the wrongdoer.

In 2002, the Pennsylvania Legislature amended the statute of limitations to create an exception for childhood sexual abuse. 42 Pa. C.S.A. Section 5533 provides:

i) If an individual entitled to bring a civil action arising from childhood sexual abuse is under 18 years of age at the time the cause of action accrues, the individual shall have a period of 12 years after attaining 18 years of age in which to commence an action for damages regardless of whether the individual files a criminal complaint regarding the childhood sexual abuse.

(ii) For the purposes of this paragraph, the term “childhood sexual abuse” shall include, but not be limited to, the following sexual activities between a minor and an adult, provided that the individual bringing the civil action engaged in such activities as a result of forcible compulsion or by threat of forcible compulsion which would prevent resistance by a person of reasonable resolution:

(A) sexual intercourse, which includes penetration, however slight, of any body part or object into the sex organ of another;

(B) deviate sexual intercourse, which includes sexual intercourse per os or per anus; and

(C) indecent contact, which includes any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.

(iii) For purposes of this paragraph, “forcible compulsion” shall have the meaning given to it in 18 Pa.C.S. § 3101.

In the typical sex abuse case, it is not unlikely the the victim does not immediately come forward. Extending  the statute of limitations by allowing Pennsylvanians who have suffered from sexual abuse  an even additional length of time from the date the abuse is reported to law enforcement authorities seems like the balanced and fair approach. Abolishing the statute of limitations in these cases does not seem likely, but as reported in The Patriot News as of April 2011 there was a push in Harrisburg to do just that. Hopefully, in light of what has happened at Penn State, we will see a more favorable statute of limitations law passed soon to allow victims sufficient time to seek compensation from their assailants, or, as in the Penn State situation, compensation from the institutions that allowed the abuse to occur.

UPDATE: Chris Mondics 11/24/11 article " Pa. laws could limit any Sandusky  suits"in the Philadelphia Inquirer provides further information on how the statute of limitations in Pennsylvania penalizes victims of sexual abuse. Shanin Specter of Kline and Specter is quite correct when he says

If you are under 20 [when one files], you are good; if you are over 30, you are out; if you are between 20 and 30, the statute turns on how you define forcible compulsions," said Specter. "I believe that, ultimately, the claims will get through the statute of limitations because these situations involve a man [Sandusky] in his 50s or 60s with young boys, where he had a domineering position.

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"Hot Coffee," the HBO documentary has been stirring up quite a dialogue around the country and about our system of civil justice in the United States. The film attacks and breaks down the myths associated with the McDonald's hot coffee case and accurately tells the story of the burn injuries suffered by Stella Liebeck. It puts a fresh spotlight on other threats to our access to the courts. The film shows the human costs to the rights we are losing because of caps on damages, pervasive uses of binding arbitration clauses and other types of clauses in consumer contracts,as well as corporate control and influence in judicial campaigns.The film has won numerous awards.

The McDonald's coffee case has been routinely cited by the media as an example of how citizens have supposedly taken advantage of the legal system. The movie shows how the case became  popular in the media, who funded the media efforts and and why. (Can you say big business, insurance companies, the U.S. Chamber of Commerce, and the far right?). Ultimately is shows that spilling boiling hot coffee and otherwise sustaining serious injuries due to another's negligence is anything but a cakewalk though our legal system.

I urge anyone who has not seen it to watch the movie.

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I am a tennis fan and player. And I love the US Open. I go every year. I am also a big fan of Serena Williams. She can dominate the court, and she sure looked like she was going to steam roll through the tournament this year. Then she met chair umpire Eva Asderaki in Sunday's final match against Samantha Stosur. Stosur was the underdog Aussie, ranked 8 in the tourney, to Serena's ranking of 28. (Yes, Sam had the higher ranking but was still the underdog going into the final).

At 30-40 in the first game of the second set, Serena hit what looked like a winner on a deep angle to Sam's backhand. But Serena screamed "C'mon" before Sam had attempted to hit the ball. (Sam got her racquet on the ball, but barely). Sam did not complain.  But the chair umpire immediately gave Sam the point, which gave her the game, making it 0-1 in favor of Stosur, with Serena down one set already in a best of three final. Here's the video.

Under tennis's hindrance rule, any deliberate action such as noise, that could distract an opponent, leads to the loss of the point.

Serena clearly was just trying to get herself motivated in a grand slam final, already down a set, and looking to go up a break. But, she lost her cool. And ultimately she lost the match in two sets. She failed to keep her "eye on the ball," figuratively speaking. She failed to realize that one call does not a match make. The umpire, ( in legal speak, judge), was making a technical call from a rulebook. That's what she is paid to do.

Every day in my practice I see "bad calls" by judges (umpires), or just calls I disagree with. That's the nature of the game. I try to make it clear to my clients going in that that's what's going to happen from time to time, and we just have to deal with the bad call and move on. The pesky rule books apply to all, and are sometimes  you, the player/litigant, are simply going to disagree with the ruling made by a judge/ umpire.

What's remarkable with the women's US Open final this year is that this very same thing happened two years ago.  Then, Serena , the defending US Open champion, was playing Kim Clijsters in the semi final. Clijsters was ahead one set in the best out of three match, and Williams was serving at 5-6, 15-30.

At a critical point in the match, a lineswoman called a foot fault on Williams on her second serve, making the score at 15-40 and giving Clijsters match point. Williams then commenced a profanity laced tirade at the lineswoman, and appeared to threaten the lineswoman. The chair umpire stopped the match, the head of the tournament was called onto the court and ruled that Williams would incur a point penalty thereby giving Clijsters the match. The fact that Williams was given a point penalty in and of itself was not the death knell of her chances of winning the match; rather it was the timing of the point penalty, on match point, that ended her chances. 

I blogged about that moment in sports two years ago. Here's what I said.  

The lesson here is that once you put yourself in the arena, whether it’s center court at Arthur Ashe Stadium, or in front of a jury, you subject yourself to “calls” (known at trial as “rulings”) that are sometimes unfair and sometimes flat out wrong. Judges make mistakes. Court rulings are simply part of the risk. The jury could get your case wrong, not find your testimony or that of your witnesses believable, or not award you enough compensation for your injuries; again, that is part of the risk of going to trial.

Serena Williams’ tirade is also a lesson to litigants. Testifying at a deposition or at trial is stressful. But, simply put, it is not in your best interest to lose your composure at a deposition or at trial. No matter how much we prepare you for the expected or the unexpected in advance of your deposition or trial, reliving the events which caused you injury and seeing the person who caused your pain is an emotional experience that must be anticipated and dealt with. You must put your best game face on and accept the consequences.

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            Central Bucks High School East teacher Natalie Munroe was suspended in February 2011 after blogging about her students. The blog posts that landed her in hot water included comments such as “I hate your kid,” “frightfully dim” (references to students) and “don’t you know how to raise kids?”

            While what Mrs. Munroe posted may be viewed by some as disrespectful or even cruel, she did have a First Amendment right to say what she felt. The school district has reinstated her to teach at Central Bucks East for the upcoming year.

            However, this all goes to the much larger issue of privacy on the Internet. The simple fact is that everything you post on the Internet is public information. All your social media accounts including Facebook, Twitter and Google+ can be found and used against you in litigation. It appears that Mrs. Munroe believed that she could blog to a limited audience where the rest of the world would never find her. That was not the case, and was a fact she had to learn the hard way by getting suspended from her job for half a year.

            It’s also a fact that many people in ongoing litigation are learning the hard way. Tweets, pictures and comments on social media sites and blogs are regularly used by insurance companies to defend insured’s in personal injury and medical malpractice cases. Once insurance companies and defense attorneys gain access to information you have posted online, they can use it to cast you in the most negative light possible.

            That is not to say that if you are a party to a lawsuit you cannot post information online. It is, however, a reminder that you should think before you post anything. 

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This is an alarming story.  A client of mine came into my office having been in a car accident a few days back. She informed me that the day after the accident, she was sent a message by the adjuster assigned to handle the claim for the at fault driver's insurance company, Progressive. This adjuster had contacted my client through facebook and "friended" her, and wanted to talk to her about the accident.

My client had the foresight not to respond to the insurance adjuster's "friend" request. I would strongly urge anyone else in her position to do the same. The insurance adjuster for the opposing insurance company in an accident case is inherently not your "friend." By contacting my client on facebook, the insurance company representative was attempting to manipulate my client to my client's disadvantage and to Progressive Insurance Company's advantage. This is not new. This is just how insurance companies operate.

I have written before about the potential dangers of social media to personal injury litigants. There are real perils to publishing anything on the net. But the fact that insurance adjusters are reaching out to accident victims as a means of communicating with them is a new development.

I would guess that people who have facebook pages generally would not envision that their facebook page would be used as a method of communication similar to  how the telephone is used or how e mail is used.  Nevertheless, social media and social networking really is just one more form of  electronic communication; but my client certainly felt as though her privacy had been invaded by the insurance adjuster who "friended" her.

I think the lesson here is that as we use various forms of technological communication, including social media like facebook,  to keep our family and friends informed of what's going on in our lives,  we have to be aware that we may be exposing ourselves to unwanted communication.  Confidentiality becomes a slippery issue for anyone who uses social media. We are all easier to find on the net. The fact that I have pictures of my family on my facebook page does not mean it is a private photo album. Quite the contrary once it's on the net.

In one sense I am impressed by the Progressive Insurance Company insurance adjuster's ingenuity in using facebook to contact my client. In another sense I am appalled.

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How do you prove who is responsible for the Delaware River duck boat tour accident?

Just like car accident cases, the evaluation of liability in boating accident cases is determined by looking at the “rules of the road.” The rules are technically called the Federal Inland Navigation Rules. They are Coast Guard navigation regulations, and all boat captains are required to follow them. If they don’t, bad things happen, as did last week in Philadelphia.

By now most of the country has heard about the collision between a “Ride The Ducks” duck boat and a barge on The Delaware River. A tugboat was pushing an empty barge and the duck boat was on the blind side of the barge.

I’ve been on the Ride The Ducks boat with my wife and three kids. We also did the same tour in Boston. I never considered that a collision between the boats we were on and a larger vessel could have occurred. The duck boats were landing craft for the Allied troops in World War II. They had done battle against the Nazis during D-Day and the Japanese at Iwo Jima. How could they not be safe? But tragedy happened, and now two Hungarian teenagers, visiting Philadelphia on a group trip, are dead. Right here in Philadelphia.

Who’s at fault? Certainly the tug boat operator, and the company that operates the tug. It’s inconceivable that the tug boat would not have a vantage point on all sides so the operator could see what happening on the river or so that an assistant could report to him. The rules of the road require that the tugboat pushing the barge have a proper lookout.

The duck boat had a small fire on the boat and was disabled in the water for at least fifteen minutes. It did not issue a distress call to the Coast Guard. It did call the home base of the tour company and was waiting for assistance. Here are just a few questions to which I'd like to know the answers.

• What caused the fire?
• What do the maintenance and inspection records reveal for the boat?
• Why was there no distress call sent to the Coast Guard by the captain of the duck boat?
• Why did the duck boat captain wait until the last few seconds when the barge was bearing down on the duck boat to tell passengers to jump into the water?
• Why not get them out sooner?
• Were there sufficient numbers of accessible and usable life vests?
• Was enough training provided to the captain and his assistant of the duck boat insofar as this type of incident?
• Why wasn’t the air horn on the duck boat operational?
• What sort of assistance did the tugboat captain have in terms of lookout on the tugboat or the barge?
• Was the tugboat captain monitoring Channel 13, the ship to ship channel, or Channel 16, the emergency contact channel?

The rules of the road apply to all water ways. As an avid kayaker in the back bays of South Jersey, I frequently see small boats and jet skis in the areas where I kayak. I can tell by how those craft are operated that the captain of the boat or operator of the jet ski has no idea of his or her legal obligations on the water.

Philadelphia’s duck boat tragedy will now set the standard for all duck boat tours around the country. New procedures will have to be place before these tours begin again. This, from a Philadelphia Inquirer article written by David O’Reilly and Linda Loyd sums up the scenario:

A vessel stalled in the middle of that teeming shipping channel is the stuff of maritime nightmares. It is also a scenario envisioned by a former Coast Guard commandant a decade ago when he barred duck-craft tours from the port. "I didn't allow it on my watch, because I was concerned about an incident like this possibly happening," said Capt. Gregory F. Adams, superintendent of the Port of Philadelphia from 1998 to 2002. He had ridden the amphibious sightseeing vehicles in Baltimore, he said. "It's an entirely different operation there. They are in more protected waters outside of commercial navigation areas. Each port is different." At Penn's Landing, he said, "the whole main channel of the Delaware runs right along the Pennsylvania side of the river. It just didn't seem like a good idea."

 

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Thomas Killino, a former assistant district attorney in Luzerne County, testified last week in front of a special panel investigating judicial corruption in Luzerne County on the part of former Judges Mark A. Ciavarella and Michael T. Conahan. I’ve reported on the goings on in Luzerne County before.

This is from an article written by Philadelphia Inquirer reporter William Ecenbarger. This is what Killino said and how members of the investigating panel responded to what he said.

"We trusted the judge," said Thomas Killino, a former assistant district attorney when asked why he did not challenge many of Ciavarella's actions, including illegally obtaining forms from young defendants waiving their right to a lawyer. Much of the questioning centered on why prosecutors, probation officers, and public defenders did not challenge Ciavarella's failure to explain to defendants the consequences of waiving their right to counsel and of pleading guilty. This process, called a colloquy, is required by state court rules.

"Did it ever bother you that there was no colloquy?" asked George D. Mosee, head of the juvenile division of the Philadelphia District Attorney's Office.

"It was a fast-paced environment," Killino replied. "This was the established practice of the court. Everyone went along with it."

Mosee, who oversees the prosecution of about 10,000 juveniles a year, added: "I've never prosecuted a child who didn't have an attorney. How do you handle it?"

Killino said he was told that the defendants had signed written waivers outside the courtroom and that he believed those overrode the requirement for a colloquy in open court to determine that the juveniles understood that they had a right to an attorney.

When Killino confirmed estimates that more than half the child defendants who appeared before Ciavarella did not have attorneys, Judge Dwayne D. Woodruff asked him if he had ever read the juvenile law that required them to have counsel.

Killino said he had read parts of the law but not the entire law.

Later, Woodruff said he had heard about 4,000 juvenile cases and every defendant had a lawyer. Judge John C. Uhler asked Killino if there were instances when defendants without lawyers were sentenced without ever speaking in their own defense. Killino said there were, and that in those cases Ciavarella would move right on to sentencing in a matter of minutes. Later, Uhler said that in his 20 years as a juvenile court judge, no defendant had ever appeared before him without an attorney.

Killino testified that he and other prosecutors did not have enough information available to them to determine whether a sentence from Ciavarella was unduly harsh.

"Didn't you want to know?" demanded Jason D. Legg, a commission member who is a prosecutor from rural Susquehanna County. "It was not part of our purview," said Killino.

Later, Legg said he prosecutes hundreds of juveniles every year and they always have legal representation.  

How does this apply to your lawyer in charge of your personal injury case? You should question your lawyer periodically throughout the pre-litigation period of your case, as the case is litigated (meaning after suit is filed) and pre trial. Ask your lawyer pointed questions about the facts of the case. Is he or she familiar with your case when you speak to your lawyer on the phone. Has your lawyer fully and completely read the laws that apply to your case?

Mr. Killino was in a position of power. Maybe not to the same degree as the judges who uniformly sentenced the juveniles who appeared in their courtrooms. Still, as an ADA, Killino owed an obligation not just to the juveniles he was prosecuting, but to the judicial system as well. His client was Luzerne County and its citizens. The duty he owed to his client was to read and know the laws that applied to juveniles being sentenced without legal counsel. The fact that Killino was familiar with the law but not completely versed in the law is inexcusable.

He, and others who appeared in Ciavarella’s and Conahan’s courtrooms, did not want to rock the boat. It’s hard to be a whistleblower. But here there was no excuse.

Your personal injury lawyer should provide the benefit of his or her expertise, value to you in the handling of your case, leading to a satisfactory result and a solution to your legal problem. To do so your personal injury lawyer has to be able to provide you answers to your questions. He has to assist you in the decision making process in your case. If your lawyer can't do that, then get yourself a new lawyer. If your lawyer is familiar with the laws that apply to your case but is not completed versed in those laws and the updates to the laws that apply to your case, get yourself a new lawyer.

Just because there is a fancy degree on the wall of your lawyer's office doesn't mean he's informed. Thomas Killino is a good example of that.
 

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This is one crazy story which recently received national attention. John Wagner, 24 and Leslie Pope, 22, were charged with theft after they refused to pay a $16.35 gratuity automatically added to the bill by the Lehigh Pub in Bethlehem, Pennsylvania.

The couple, dining with a group of friends, claimed they waited more than an hour for their meal, and had to go to the bar to get  drinks refilled and pick up their own silverware. When they left without paying the tip, the restaurant  manager called the police who arrested the couple. The Northampton County District Attorney later dropped the charges.

There are many lessons here. First, terrible marketing on behalf of the restaurant. That's a given. Who would ever want to go to that restaurant?

Having said that, it can be tough as a waiter or waitress. Having waited tables in college, I know that sometimes bad service is a direct result of what's going on in the kitchen. Nevertheless, the waiter or waitress is the one that is penalized if a meal comes out slow from the kitchen. It sounds like there was more than that going on in this story however.

All I know is that as a personal injury attorney, I don't get  paid in gratuities. In fact, I don't get paid unless I obtain a successful settlement for my client, or try the case to verdict and win. That is the nature of the contingency fee relationship I have with my clients. In addition, I have to pay all of the costs to finance to prosecution of the case!

I wonder how the restaurant industry would do if customers decided at the end of each meal whether to pay for the meal itself, let alone the tip?

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Wolf Blitzer is a professional interviewer. He has  prepared questions.  He listens to the response that  he gets to his questions and uses the response to formulate his next question. That's what he did when he interviewed Richard Heene, the Colorado father of  6 year old Falcon.  Wolf was exploring the issue of whether the report by the Heenes that their son was trapped in a balloon was all a publicity stunt. Falcon was found hiding in the family's garage last Thursday after the family reported that they feared he had disappeared and was floating around in a homemade helium balloon, flying 50 miles through the sky.

Watch  Mr. Heene squirm when he is asked to comment on his son having just said on camera "you guys said that we did this for the show. " The boy was answering the question raised by Wolf of why he just did not come out of the garage attic when he heard his family calling for him. The father barely looks at the camera. His wife also looks a bit worried.

Litigators are professional interviewers, like Wolf Blitzer. They come prepared. They have background on the person they are deposing. I'm quite sure Wolf had background on the Heenes. Lawyers who litigate for a living are like electronic lie detectors. They can smell when someone is not being truthful.

Now the Heenes are being charged with crimes related to what appear to be false reports about their son's supposed flight on a hot air balloon. They may be completely innocent.  Time will tell. Right now it sure doesn't look good for them. But you don't have to be an expert in body language to see that the Heenes were unsure of themselves and worried about what their son had said and what they had said, or might say, on camera. They were being scrutinized. Not unlike what happens at a deposition.

Lesson here? Tell the truth at your deposition.

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