Message from the chair

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1 F o r P e n n s y l v a n i a Y o u n g L a w y e r s, h e r e s w h a t s... AT ISSUE A p u b l i c a t i o n b y a n d f o r t h e Y o u n g L a w y e r s D i v i s i o n o f t h e P e n n s y l v a n i a B a r A s s o c i a t i o n Message from the chair By Lisa M.B. Woodburn S u m m e r Welcome young lawyers! I am thrilled to have the Young Lawyers Division publication, At Issue, up and running this year! This year s Executive Council consists of a diverse mix of young lawyers from all zones and practice areas. The Executive Council has many new members who bring excitement and enthusiasm to the council as well as some more seasoned members who bring experience and leadership. The Executive Council plans to challenge every young lawyer to become active in one thing within the YLD and one thing outside the YLD but within the Pennsylvania Bar Association. The current Executive Council appreciates the importance of life after the YLD ; therefore, active involvement in the bar association, as a whole, is a top priority in the bar year. The Young Lawyers Division will continue the Wills for Heroes and Project Kid Care programs, and we will add additional opportunities for young lawyers to become involved. The Voices Against Violence program offers young lawyers a chance to work within their community to educate individuals on the prevalence of domestic violence in our society. This is a relevant and powerful opportunity for all of us to make a difference. Increasing membership is a priority for the council. This year, we are paying attention to our law student division. Our council members will be proactive, reaching out to law schools to attract new future young lawyers; if we can get enough support and enthusiasm among our members, council would like to start a mentoring program for the bar exam as another avenue for gaining new members. Our goals are to host a zone caravan in every zone by the end of this Members of the YLD Executive Council include (from top left, on stairs): Samara Gomez, Claudia Williams, Robert Datorre (first row), Jennifer White, Aly Oswald (second row), Lisa Woodburn, Jake Gurwitz, Joel Seelye (third row), Hope Guy, Nadia Lazo, Kevin Skjoldal, Matt Logue (fourth row), Jarrod Tranguch, Justin Bayer (fifth row), Kelly Bray and Lars Anderson (bottow row.) Standing with the council are (from left, on floor) PBA Executive Director Barry Simpson, PBA President Gretchen Mundorff and PBA President-elect Matt Crème. PBA YLD Executive Council members not pictured include Tim Burns, Michelle Christian, Marla Presley, Ryan Blazure, Rachel Kopp, Tehal Mehta, Julie Steinbacher, John Hauser, Matt Parini, Sean Gresh and Bill Flannery. year, increase the numbers of articles to be published in At Issue, and host joint receptions with PBI and the YLD for new members of the bar. This year we are also planning a trip to the United States Supreme Court where those who are qualified will be moved for admittance to the high court. Space may be limited, and this is an incredible event. Watch for more details, and sign up soon! I am truly excited about our current council and look forward to working with you. I personally challenge every young lawyer to me at angino-rovner.com and let me know how you would like to become involved in your bar association both as a young lawyer and as an active member within the Pennsylvania Bar Association. Lisa M.B. Woodburn of the Harrisburg law firm of Angino & Rovner is the chair of the PBA Young Lawyers Division.

2 Reflecting on the past year When new At Issue Editor (and former YLD chair) Bill Higgins asked me to write an article reflecting on my past year as chair of the YLD, the first thing that came to mind was traveling. As chair, I traveled across Pennsylvania and the nation meeting young attorneys. Why did I travel so much? Because I had an agenda to advance, and that agenda was promoting a renewed interest in the concerns and issues facing our division s 8,000 members. To begin, I returned the annual retreat of the Executive Council back to PBA headquarters at the Maclay Mansion in Harrisburg in order for our leaders to have a better appreciation of the organization. The PBA is more than a century old and its headquarters, far older. My agenda continued with the annual YLD Summer Meeting, held at Seven Springs Mountain Resort in Somerset with more than 130 attendees. With the theme of legal ethics, I was honored to have a CLE conducted by Lawyers Concerned for Lawyers Executive Director Kenneth J. Hagreen regarding the services offered by LCL (www.lclpa. org). LCL is a comprehensive assistance program designed to meet the unique needs of lawyers, judges and their family members who are struggling not only with alcohol- and drug-related problems but also with stress, anxiety, depression, gambling, eating disorders, sexual addiction, process addiction and other emotional and mental health issues. The reason I wanted to introduce the members of the YLD to LCL is that I am concerned that too many of our members are making errors in judgment in their personal and professional conduct. Though I love this profession, it is a profession that is held to a much higher standard than others. When is the last time you read about a mailman or accountant who was charged with a DUI? Or drug possession? Or a bar fight? I could go on and on. Unfortunately, when an attorney breaks the law, it is news and will be in the paper. I hoped that during my tenure as YLD chair at least one young attorney who may be struggling with personal issues reached out to use the confidential services of LCL. LCL is not there to pass judgment but rather to help. Next on my list was reaching out to the Pennsylvania Bar Institute (PBI), By Timothy S. Burns the continuing legal education arm of the PBA. Thanks to our efforts, our division is now permitted to have a nonvoting liaison serve on the PBI board. All lawyers agree on the value of the PBI s CLE programs and having representation from the YLD only enhances its worth. This focus on CLEs continued at the annual Conference of County Bar Leaders meeting in Lancaster in which the YLD sponsored a CLE conducted by Ellen Freedman regarding the use of social networking sites, such as Facebook and Twitter, in your law practice. Several members of the YLD leadership also conducted a session on getting involved in the PBA. Besides these personal agendas, I was honored to continue the YLD s leadership in the Mock Trial and Wills for Heroes programs. This year s state mock trial competition was a great success with 339 schools participating (a record number) and with Scranton Preparatory School winning the state title and advancing to the national tournament in Philadelphia. It was a pleasure to speak at a ceremony for the state champs in the capitol rotunda as they made their way to Philadelphia. Perhaps, my biggest accomplishment regarding my agenda was the significant advancement in diversity in the leadership of the PBA YLD. During my year as chair, the majority of officer positions, leadership positions and membership on the YLD Executive Council were held by women and/or minorities. In fact, the majority of appointed positions by the YLD chair were given to qualified and competent women and/or minorities. Not all of the traveling to promote my agenda was serious; in fact, many of my highlights as chair were attending the caravans that have become permanent fixtures on my calendar. Among the highlights included my annual trip to attend Jacob Gurwitz s annual steak, beer and baseball day in Reading, with the highlight being a Reading Phillies game, as well as the annual pilgrimage to Wilkes-Barre for the Oktoberfest. On the home front, I always enjoy the Altoona Curve baseball game at Blair County Ballpark. And this spring, I attended the annual Comedy Night at the Waterfront near Pittsburgh, hosted by the Allegheny County Bar Association s YLD to benefit the ACBA s Bar Foundation. Besides the caravans, it was also an honor to attend the annual ACBA s Bench At Issue Editors William J. Higgins Jr. Robert T. Datorre At Issue is published by the PBA Young Lawyers Division. Editorial items, news material and correspondence should be sent to the PBA Communications Department, P.O. Box 186, Harrisburg, Pa Division Officers: Lisa Woodburn, Chairperson; Hope Guy, Chair-elect; Timothy S. Burns, Immediate Past Chairperson; Jarrod Tranguch, Secretary; Michelle Christian, Treasurer; Robert Datorre, YLD Division Delegate; Marla Presley, ABA/YLD District Representative Zone Chairpersons: At-large: Ryan Blazure, Rachel Kopp, Claudia Williams; Zone One: Alyson Oswald, Tejal Mehta; Zone Two: Jacob Gurwitz; Zone Three: Samara Gomez, Kevin Skjoldal; Zone Four: Julieanne E. Steinbacher; Zone Five: Lars Anderson, Kelly Bray; Zone Six: John Hauser; Zone Seven: Matthew J. Parini; Zone Eight: Joel Seelye; Zone Nine: Justin Bayer, Sean Gresh; Zone Ten: William J. Flannery; Zone Eleven: Jennifer White; Zone Twelve: Nadia Lazo, Matthew T. Logue PBA Staff: Maria Engles, YLD Coordinator; Amy Kenn, Editorial Liaison The materials printed herein are of general reference and are subject to interpretation consistent with state and federal laws Pennsylvania Bar Association Young Lawyers Division Bar at Seven Springs Mountain Resort and the Philadelphia Bar Association s Bench Bar in Atlantic City, N.J. I had such an enjoyable time at the ACBA Bench Bar that I decided to join the ACBA as a social member. Though rumor has it that I joined the ACBA because of their Bench Bar, it was also to catch up with a lot of my friends from my days at Duquesne University Law School. As for the Philadelphia Bench Bar, it was a real educational experience coming from a smaller county to see how attorneys work and interact in a much larger county. I met some great friends in Philly as well. I was honored to end my year in Harrisburg as chair, not only to hand the torch to current Chair Lisa Woodburn but to give awards to two distinguished individuals. First, former YLD Chair (and current At Issue Editor) Bill Higgins received the Michael K. Smith Excellence in Service Award on behalf of the YLD. Continued on Page 3 2

3 YLD members in the news ANNOUNCEMENTS Victoria Avellino (Zone 5, Monroe County) has joined Amori & Riegel LLC in Stroudsburg. Avellino previously worked for Monroe County President Judge Ronald E. Vican Ryan Blazure (Zone 5, Luzerne County) co-founded the new Wilkes-Barre office of Thomas, Thomas and Hafer LLP in May 2010 after joining the firm in January. Blazure was previously with Cardoni & Associates. Shelley Centini (Zone 5, Luzerne County), immediate past president of the Wilkes-Barre Law & Library Association s YLD, was named partner of the Dyller Law Firm. Kevin Grebas (Zone 5, Luzerne County), vice president of the Wilkes-Barre Law & Library Association YLD, became a partner with Marshall, Parker & Associates. Jarrod Tranguch (Zone 5, Luzerne County) was promoted to senior attorney adviser with the Social Security Administration Office of Disability Adjudication and Review. Lisa Watson (Zone 3, Dauphin County) recently became director of the Bureau of Program Support in the Pennsylvania Department of Public Welfare s Office of Income Maintenance. Watson previously served as legal counsel in PHEAA s Legal Compliance Services Division. Claudia Williams (Zone 3, Dauphin County), who previously worked at Post & Schell P.C. and the Pennsylvania Gaming Control Board, has recently joined Thomas Thomas & Hafer LLP as a partner. BIRTHS Jarrod Tranguch (Zone 5, Luzerne County) and wife, Bonnie, welcomed their first child Liam Joseph into their family on Feb. 5, WEDDINGS Victoria Avellino (Zone 5, Monroe County) married Christopher Strunk on June 4, At Issue welcomes submissions from YLD members regarding firm changes or promotions. Members are also encourages to submit announcements of weddings and births. Please send your news to Maria Engles Reflecting on the past year Continued from Page 2 The award is named in memory of a young Philadelphia lawyer committed to providing legal services for low-income people and to offering law-related educational programs to students. The award is presented to a Pennsylvania young lawyer who, through his or her exemplary personal and professional conduct, reminds lawyers of their professional and community responsibilities. After talking to former PBA President Andy Susko who worked with Michael K. Smith, I knew that Higgins was the right person to receive the award. He received the award not just for spearheading the effort to bring the 2010 National Mock Trial Tournament to Philadelphia but also for his leadership in the profession outside of the PBA. A very notable recent accomplishment is that Higgins, who is Bedford County s district attorney, is the only district attorney in Pennsylvania to have prosecuted an individual for the unauthorized practice of law. Next, Daniel T. Perkins, a Johnstown native and successful businessman, received the Liberty Bell Award which is given to an individual for his or her outstanding community service and for promoting the blessing of liberty guaranteed by the Constitution. Criteria for the award include: promoting a better understanding of our government and the Bill of Rights; encouraging greater respect for the law and the courts; creating a better awareness of individual responsibility so that citizen recognize their duties as well as their rights; contributing to the effective functioning of our government; and encouraging a better understanding and appreciation of the Rule of Law. Perkins is the founder and board chair of The Challenge Program (www.tcpinc. org), a nonprofit organization that builds bridges between high school students and the business community. Established in 2003, the organization started as a pilot program in just one school. More than 100 schools are currently involved. The Challenge Program provides cash incentives to students for achievement in community service, academic excellence, academic improvement and attendance. Many of these schools are implementing the Project Citizen curriculum, in which educators engage students in civic service projects and which has been spearheaded by First Lady Judge Marjorie O. Rendell. Perkins has more than 30 years of professional experience in commercial and government industries. He is the owner and chairman/chief executive officer of MTS Technologies Inc., a national defense company. For his work, MTS ranked on the Black Enterprise Magazine s BE Top 100s list in 2004, 2005 and Well that s it. What a year, and while my tenure has come to a close, it has been a great year, and I m confident that the division will be going in the right direction with its new leadership, plus a rejuvenated At Issue to cover us. And while I may not be as visible in the division, you can bet that I will be following the PBA YLD in its Facebook page another little accomplishment from the past year. Timothy S. Burns, the immediate past chair of the YLD, is a solo practitioner in Ebensburg, Cambria County. 3

4 Don t miss the 2010 YLD Summer Meeting! Below is the conference agenda for the 2010 YLD Summer Meeting at Seven Springs Mountain Resort in Champion, Pa. FRIDAY, JULY 30 1:30 3:00 p.m. YLD Business Meeting Get an update on what is happening in the YLD, and learn about upcoming programs and how you can expand your practice through Division participation. Bring ideas about programs you want to see the YLD implement and ways the YLD can assist your county with young lawyer programs. 3:00 4:00 p.m. Lei Down the Law Robert s Rules of Order (CLE) Many organizations or committees profess to follow Robert s Rules of Order when conducting meetings. But what does it mean to table something? What is a friendly amendment? This session will explain the practical aspects of Robert s Rules and explore its use in running meetings for a large organization. Entertaining and educational; practical and actual. It s time to Lei Down the Law! 4:15 5:15 p.m. Breathe Out, Breathe In & Move On Quality of Life (CLE) Using video vignettes of real-life law practice dilemmas to set the stage for the discussion, a panel of experts will share strategies for dealing with situations that affect your ability to maintain a healthy work-life balance. You will learn how to resolve crises and remain true to your professional responsibilities to clients and colleagues, yet leave time for personal fulfillment. Proactive planning to eliminate or minimize stress will be explored. 6:30 7:00 p.m. New Admittee Welcome/ Cocktail Reception 7:00 7:30 p.m. ALOHA! Speed Networking This event will introduce you to PBA leadership, young lawyers and your peers. In just minutes, this event allows you to meet your fellow bar members and get to know a little about their practice area, where they practice, their involvement and position in the PBA and other valuable information. Be prepared to talk about yourself and learn about the other person in about 45 seconds. You will then move on from person to person, collecting business cards and making contacts throughout the event. 7:30 9:00 p.m. Luau Dinner Enjoy a relaxing, luau-themed evening. Opening remarks will be given by the YLD Chair Lisa M.B. Woodburn and PBA President Gretchen Mundorff. The Friday night dress is casual and Hawaiian. Be bold and brave, and compete to win Alpine Slide tickets in the YLD Best Hawaiian Shirt contest, judged by the YLD Executive Council. 9:00 p.m. midnight Reception and entertainment SATURDAY, JULY 31 8:00 9:00 a.m. Breakfast on your own 9:00 a.m. 12:00 noon How to be the Big Kahuna PBA Leadership Training (CLE) The PBA Leadership Recruitment & Development Committee is conducting its PBA Leadership Training Institute for those who are interested in learning more about the PBA and how to become more involved. Program attendees will learn about the opportunities for relationship building in the PBA, the governance structure of the PBA, what leadership positions are available and how to become a leader in the PBA. 9:00 10:00 a.m. Let the Sunshine In Interpreting the 2009 Right-to-Know Law (CLE) The new Right-To-Know Law (RTKL) has been hailed as opening a new era in Pennsylvania government transparency. While the RTKL has increased the rights and remedies of those who request public records and has added much more detail than existed in the previous law, it has also left many areas of ambiguity. Our panel, with a Commonwealth Court judge and lawyers from private and government practice, will review the new provisions, exemptions and procedures in the RTKL, as well as preferred practices for obtaining public records and defending non-disclosure of records that an agency determines are not public, and discuss controversial areas in the new law and recent Commonwealth Court decisions that have dealt with many of these questions. 10:05 11:00 a.m. This Side of Paradise (CLE) There are many questions on the road from law school to Paradise how do I get 4 there; which path should I take; who will be my guide? Whether you are a traditional new lawyer (under age 38) or a non-traditional new lawyer (over 38 and in practice less than five years), you re wondering, How can I be a successful lawyer? The YLD invites all new lawyers to take a guided tour on a path that should, in time, lead to Paradise. This program will explore the questions, fears, concerns and challenges that all new lawyers are faced with when they begin to practice law. Resources and opportunities for introductory CLE courses designed specifically for the new lawyer, as well as opportunities for business and social networking, will be discussed. 11:15 12:15 p.m. The Hula Hoops of Criminal Law (CLE) Summaries to Felonies: This program briefly addresses basic criminal practice and procedure before the magisterial district judges in Pennsylvania. From the filing of a summary citation to a felony complaint, we will discuss client preparation, document review and discovery, conduct of summary and preliminary hearings, and potential dispositions, including those available in the alternative to criminal convictions. 12:30 1:30 p.m. Lunch 2:00 p.m. Golf Outing 2:00 p.m. On Your Own 2:30 p.m. Fallingwater bus trip 6:00 7:00 p.m. Cocktail Reception 7:00 9:00 p.m. Dinner PBA President-elect Matthew J. Creme Jr. The Year in Review, Pennsylvania Supreme Court Justice J. Michael Eakin 9:00 p.m. midnight Reception and entertainment The MCLE programs for the 2010 PBA YLD Summer Meeting are presented in cooperation with the Pennsylvania Bar Institute. The Pennsylvania Bar Institute is approved by the Pennsylvania Supreme Court CLE Board as an accredited CLE provider. The individual CLE programs for this conference have been approved for the number of credit hours indicated.

5 The Zone 2 (Berks County) caravan the Steak, Beer and Baseball event was held June 18 in Reading at a Reading Phillies game. A YLD zone caravan is a great opportunity for lawyers to mingle and network. It s also an occasion to invite lawyers to join the PBA and become a member. What is a caravan? It s an event, coordinated by each YLD zone chair(s) at least once a year, to gather young lawyers from the counties within the zone. Events range from happy hour to bowling to sporting events, picnics and more. Upcoming caravan announcements are posted on the PBA YLD s Facebook page, PBA Young Lawyers Division, and dispersed via . Coming soon is the Wilkes-Barre Law & Library Association YLD s Zone 5 caravan Oktoberfest on Sept. 30 at the Arena Bar & Grill, 380 Coal St., Wilkes-Barre, in Luzerne County. Traditional German food and the Arena s tremendous selection of beer highlight this event. Limited edition commemorative mugs will be available. More details will follow. Contact Jarrod Tranguch with any questions. Zone Caravans The Zone 7 (Erie County) caravan headed to the Presque Isle Downs and Casino in Erie. In a series of three photos from the June 12 event (from top, left) are law clerks Michael Comstock (from left), Ryan Watson and Jeremy Lightner; attorneys Michael Thomas (middle photo, from left) Craig Shamburg and Marissa Savastana; and (photo at left) Zone Chair Matt Parini. Earlier this year, Zone 3 took in Hershey Bears ice hockey games on Jan. 23 and Feb. 27. Enjoying the game (in the photo at left) are Brett Woodburn (from left), Chuck Eppolito and Robert Datorre. In the photo above are (from left) Kevin Skjoldal, Michelle Skjoldal and Tim Burns. 5

6 The Pennsylvania High School Mock Trial program and its influence on my career By Bill Higgins Jr. It was a thrill to serve as a scoring judge for all four rounds of the National Mock Trial Competition during Mother s Day weekend in Philadelphia. The event was the final culmination of the successful bid that I initially presented to the PBA Board of Governor s during my year as chair of the PBA Young Lawyers Division in For those who weren t able to attend, 2010 Pennsylvania Champion Scranton Preparatory High School of Lackawanna County proudly represented the commonwealth at the competition, placing tenth in the nation, and at a Saturday night banquet held at the Marriott Hotel in downtown Philadelphia, Breck High School of Minnesota was crowned the 2010 National Champion. Also, during the awards banquet, I was honored to assist in the presentation of the Margaret Recupido Award, named after my former teacher and mock trial coach, to Brendan Flynn of Nevada s Bishop Gorman High School. Following mock trial nationals weekend, I began to reflect on my legal career thus far and the influence that the High School Mock Trial program has had on my life both professionally and personally, and I realized that sharing my journey might give some additional perspective to the value of the program. Every attorney, at some point in his or her career, is asked some variation of the question: What inspired you to become a lawyer? It s a question that I have been asked many times and one I am all too happy to answer: the Pennsylvania Statewide High School Mock Trial program. As a freshman in high school, at the urging of my father, I tried out for Cardinal Dougherty High School s basketball team. I made the freshmen team, although that was certainly more attributable to my dad s friendship with the coach than it was to my skill as a basketball player, which I will admit was somewhat lacking. It didn t take me long to realize that a career in basketball was not in my future. When sophomore year rolled around, I decided I would pursue an extracurricular activity that didn t require as much athletic ability, and mock trial seemed to fit the bill. At that time, due to a dedicated teacher coach, Margaret Recupido, Cardinal Dougherty had won the Mock Trial City Championship for seven consecutive years. To Recupido, mock trial was just short of a full contact sport, and I wanted to be a part of it. Sophomores couldn t just walk onto the team and jump into a role, so during my sophomore year, I worked with the team but did not compete. [When I was in high school (CD 92), only one team per school was allowed to participate in the competition. One of the changes I helped implement as a member of the PBA YLD, which runs the statewide mock trial program, was to allow schools to field second teams in the competition so more students get the experience I had later in high school.] I made the trial team my junior year and competed in the role of a witness, Jamie Bench, on a team that finished third in Pennsylvania. Although it was exciting to be an active member of a state finalist team, my real high school mock trial glory came my senior year when I was given the opportunity to serve as one of the attorneys. In the statewide mock trial competition, each team has two witnesses and three attorneys and must be able to present both sides of the case. I proudly lead Cardinal Dougherty to another city championship (it was our 10th of what would be 11 in a row), defeating Martin Luther King High School in a hard-fought city finals trial. My family was not a family of lawyers, and like many kids at Cardinal Dougherty High School, I grew up needing to work as I did at the local Seven-Eleven. Because of the mock trial program, the prospect of me becoming a lawyer became more of a reality. It was through mock trial that I was given my first public speaking experience. It was through mock trial that I learned how to conduct a thorough cross examination. It was through mock trial that I first learned proper courtroom decorum. It was through mock trial that I learned the benefits of preparation and Bill Higgins Jr. (from left), Linda Hee and Margaret Recupido present Brendan Flynn (holding award) with the Margaret Recupido Excellent Advocate award. hard work. It was through mock trial that I learned the joy of victory and the agony of defeat. And it was through mock trial that I began to learn the leadership skills that have shaped my career. Mock trial also allowed me to network with professionals for the first time. In just the few years I spent on the CDHS mock trial team, I met countless people who would have a great influence on my career, starting with my attorney coaches Jacci Vigilante and Fred Bader. Vigilante would go on to be chair of the PBA YLD, a role in which I would follow her, when I served as PBA YLD chair in Continued on Page 7 6

7 The Pa. High School Mock Trial program Continued from Page I also met my mentor, mock trial guru and PBA Pro Bono Coordinator David Trevaskis, and Temple-LEAP s Roberta West, who now runs the city event through the Philadelphia mock trials. Trevaskis was a lawyer working for Temple-LEAP when I first met him, and he recruited me during my senior year to be on a city-wide, all-star mock trial team that did a special presentation for the Jewish Law Society, Tau Epsilon Rho. Trevaskis then booked us for a Saturday presentation at the statewide Students Against Drunk Driving Conference in Boalsburg, a four-hour drive from Philadelphia that required us to leave at 7 a.m. I was the only all-star to show up that early in the morning on a weekend, but we scrambled together a judge and a witness from neighborhood kids, and I pulled in a then-freshman member of the CDHS team, Brendan Boyle, and off we went to Boalsburg, where I won my first conviction albeit mock in a drunk driving case. Maybe it helps that I was dating the judge! I did not end up marrying that judge, but my beautiful wife, Amy, and my two lovely daughters know how much mock trial means to me, and they often travel with me to participate in mock trial events. Trevaskis continues to be a positive influence on my career and life, and Boyle remains a friend across party lines. Boyle, like the majority of my mock trial teammates, has gone on to a very successful career, serving the 170th Legislative District as state representative since There is a long history of mock trial participants going on to careers in law, as I have, or other forms of service as Boyle has done. Tobey Oxholm, the longtime Philadelphia lawyer now heading Drexel s new campus in California, said it best when Drexel decided to become the leadership sponsor for the National High School Mock Trial Competition: The skills that colleges, graduate schools and employers are hoping to find in their students and their employees are exactly the skills that the mock trial competition develops. Bill Higgins Jr. (right) gives some words of advice to the students from Scranton Preparatory High School before the start of the 2010 National Competition. Scraton Prep would go on to place 10th in the nation. Since my high school years, I have participated in the mock trial program in every conceivable role: judge, juror, time-keeper, statewide coordinator, national board member and now, team coach. From 2005 through 2008, I served as statewide mock trial coordinator, and in 2007, while serving as chair of the PBA YLD, I was instrumental in putting together the successful bid to bring the National Mock Trial Competition to Pennsylvania in 2010, and it was an honor and privilege to serve as one of the major fundraisers for the event. Since 2009, I have proudly served as an attorney-adviser to the 2009 State Champion Central High School of Martinsburg, Pa. I look forward to the mock trial season each year the way that some people anticipate the NCAA tournament. Each March, the term Final Four has had a far different meaning to me than it has for most others. For the last 10 years, I have been at the state finals, helping to select the four teams that would advance to the semi-finals and ultimately help crown the state champion who would then move on to represent Pennsylvania at the national competition. I have watched students perform in hundreds of mock trial competitions. I am not the least bit embarrassed to admit that I have borrowed tactics, strategies and techniques from students I have observed and successfully used them in criminal prosecutions. As the adage goes, You are never too old to learn something new. If you have ever participated in any fashion in the High School Mock Trial program, I am confident that you understand my passion for the program. If you have not, I would encourage you to get involved. The PBA YLD is always looking for volunteers to serve as judges and jurors. Next year, consider coaching it is a lot of time, but the impact you can have on a student s life is immeasurable. At Issue Editor Bill Higgins Jr. is the Bedford County district attorney. He was the chair of the PBA Young Lawyers Division. Want to be in the know? Then check out the PBA E-News The electronic newsletter is sent to members addresses. If you re a PBA member and want to start receiving the E-News, send an to with the words member address update in the subject line. 7

8 2010 Annual Meeting in review The bar year drew to a close on May 12-14, 2010, at the PBA s 2010 Annual Meeting at the Hershey Lodge in Hershey. The Annual Meeting gives us all the opportunity to reflect on the accomplishments of the PBA and thank those who participated in ensuring the advancement of the legal profession during the previous year and also look forward to the plans for the upcoming year while welcoming a new slate of PBA leadership. The 2010 Annual Meeting began Wednesday with the Commission on Women in the Profession s (WIP) 17 th Annual Conference and the Real Property, Probate and Trust (RPPT) Law Section s Annual Meeting. Wednesday s activities included various CLE offerings as part of the WIP conference and RPPT meeting and an awards luncheon held by the WIP. The Young Lawyer Division s Annual Meeting also began Wednesday, with the YLD Executive Council dinner at Dafnos Italian Grille in Hummelstown. The RPPT meeting continued Thursday, and the PBA also held Committee/Section Day meetings and the annual Awards Luncheon. The YLD presented the Michael K. Smith Excellence in Service Award to Bill Higgins Jr., district attorney for Bedford County. Higgins is a former member of the YLD Executive Council and former chair of the division and continues to be a great friend and supporter of the YLD and its moot court program. The division also presented the YLD Liberty Bell Award to Daniel T. Perkins. Please feel free to Maria Engles org) for additional information about the Michael K. Smith Excellence in Service Award and YLD Liberty Bell Award and this year s award recipients. The Awards Luncheon also included the formal Passing of the Gavel for the office of YLD chair from Tim Burns to Lisa Woodburn. We thank Burns for all of his hard work during the bar year and his previous years of service on the YLD Executive Council. We expect great things from Burns in the future and welcome his continued participation in the division. We also extend our encouragement and support to Woodburn and know that her years of service on the YLD Executive Council and in the PBA will help her and the YLD continue to move the PBA forward as one of the top bar associations in the nation. The division s Business Meeting was held Thursday afternoon. The YLD engaged in a spirited discussion on Michael K. Smith Excellence in Service Award recipient Bill Higgins Jr. (left) poses with incoming YLD Chair Lisa Woodburn and outgoing YLD Chair Timothy Burns. In the photo at top, left, Burns passes the gavel to Woodburn, and in the photo at top, right, Daniel T. Perkins receives the YLD Liberty Bell Award from Burns. the topic of diversity, an issue that has recently come to the forefront of the PBA s agenda, particularly as it relates to diversity of the PBA s leadership. The YLD was happy to report its strong efforts toward diversifying the PBA leadership, many of which were and continue to be initiatives of our past chairs and our new chair, Woodburn. The YLD reaffirmed its commitment to ensuring diversity in its leadership and encouraging diversity in the PBA s leadership. The YLD welcomed outgoing PBA President Cliff Haines for part of the diversity discussion and incoming PBA President Gretchen Mundorff for discussion on plans and direction for the PBA in the bar year. Elections for division officers were also conducted during Thursday s business meeting. The YLD s Nominating Committee reported that Hope Guy was nominated for the office of chair-elect; Michelle Christian was nominated for the office of treasurer; and Jarrod Tanguch was nominated for the office of secretary for the bar year. Robert Datorre was nominated for the office of division delegate for the remainder of the two-year term of Beverly Rampaul. Guy, Christian, Tanguch and Datorre were unanimously elected to fill the offices for which they were nominated. A special thanks Jacob Gurwitz and Guy for providing a delicious assortment of fresh deli meats and cheeses for the YLD Business Meeting. On Thursday evening, the PBA welcomed Mundorff and honored Haines at the Annual Dinner Reception Continued on Page 9 8

9 At the 2010 Annual Meeting are YLD members (above) and (at right) incoming PBA President Gretchen Mundorff (left) and incoming YLD chair Lisa Woodburn Annual Meeting Continued from Page 8 and Annual Dinner. Those in attendance enjoyed a delicious dinner and dessert, drinks, short speeches from the Annual Meeting Planning Committee and the incoming and outgoing PBA presidents, friendly discussions, music and dancing. Celebrations continued after the Annual Dinner at the post-parties hosted by the incoming PBA president and incoming YLD chair-elect. Friday was reserved for the House of Delegates Meeting, where representatives of the bar from all corners of the commonwealth gathered to discuss and debate various issues that affect the legal profession in the country and the state and where action by the PBA is necessary to ensure that the voices of Pennsylvania s attorneys are heard. The PBA s Nominating Committee presented its report for the election of PBA officers. Thomas G. Wilkinson Jr., was nominated for the office of vice president; Penina Kessler Lieber was nominated for the office of secretary; and Francis X. O Connor was nominated for the office of treasurer. The committee also nominated Matthew J. Creme Jr., Haines, Roberta D. Liebenberg and Woodburn for election as PBA Delegates to the ABA House of Delegates. All the individuals nominated were elected to their offices or positions. Congratulations to Woodburn and the other new officers and delegates. Also on Friday, the PBA presented reports and statements on the state of the PBA from Haines, Mundorff, the PABAR-PAC, O Connor, PBA Executive Director Barry M. Simpson and Burns. Pennsylvania Supreme Court Chief Justice Ronald D. Castille presented his State of the Judiciary Address and reminded us that the judiciary and legal profession in the commonwealth are facing many challenges with reductions in budgets and funding and attempts to take the regulation of the legal profession away from the Pennsylvania courts. The PBA also held a special presentation at the House of Delegates Meeting to present Special Achievement Awards and the 50Year Member Awards. Congratulations to all the awards recipients. The House of Delegates Meeting and Annual Meeting concluded on Friday afternoon, marking the official end of the bar year and beginning of the bar year and the commencement of the terms in 9 office for new PBA officers, delegates, YLD Executive Council members and chairs and cochairs of the various PBA committees and sections. The YLD thanks all those who left PBA leadership positions at the conclusion of the Annual Meeting for their time and effort dedicated to the PBA and the legal profession during the bar year. The division also wishes the best of luck to those in new positions throughout the PBA and those continuing in the bar year in their current positions as they strive to move the bar and the law forward. The 2010 Annual Meeting was a great success, and thanks goes to all who participated in planning the meeting and all who traveled from near and far to attend. The YLD would like to thank the PBA s Board of Governors, House of Delegates, Annual Meeting Planning Committee and the PBA executive staff for a very enjoyable and informative 2010 Annual Meeting. The division would like to especially thank Maria Engles, Audrey Perez and the rest of the PBA staff for making every Annual Meeting and the YLD events a success. See you all at the 2011 Annual Meeting in Philadelphia. n

10 My summer job in Cambodia: a dream come true By Aimee Haynes A summer job in Cambodia a dream come true or an adventure that could go horribly awry? I guess it depends on the person, but for this rising 2L, it has been the experience of a lifetime! I chose Temple University Law School over a number of other schools for one reason: the international law department. So it was no surprise that at the first presentation about international summer jobs, I was in the front row. A few people talked about their experiences in Rome or South Africa, but the only one that had me riveted was a presentation about working on issues related to the Khmer Rouge Tribunals in Cambodia. From then on, I was on a job hunt mission: to get hired by the Documentation Center of Cambodia (DC-Cam)! I realized there were several options to work directly for the tribunal, but given my interests in law, history and education, I decided to pursue a position with the Documentation Center. The center gives legal associates more freedom to choose their legal research topics, and the work takes associates in directions that interest them most. It was clear that DC-Cam is where I belonged. Fortunately, they felt the same way when they received my application, and I began planning for a summer in Cambodia. DC-Cam, an independent organization that called for a tribunal to try top Khmer Rouge leaders, now supports the Extraordinary Chambers of the Courts of Cambodia (ECCC) by doing independent legal research that they share with all parties to the court as well as a wide variety of international criminal law scholars. After what seemed like an eternity of waiting, with finals finished and writeon completed, I was finally on my way to Cambodia! I stepped off the airplane and walked into what seemed like a pressure cooker. It turns out that the weather isn t the only part of being in Cambodia that has that effect. Within 24 hours of arriving, I was off and running on my first topic of research with hardly any instruction on where to start. Fortunately, with help from some of my professors, a supportive director and legal adviser at DC-Cam, and 11 other interns just like me, I was quickly on my way to successfully researching and writing. This summer, I m getting to look at two main questions of law that affect Case 002 at the ECCC against Nuon Chea, Ieng Sary, Ieng Thirith and Khieu Samphan Aimee Haynes, foreground, takes notes on a presentation by one of the National Teachers. The students behind her are provincial teachers who are learning how to use the new curriculum. at the ECCC. Both questions are very procedurally oriented and are making my job extra interesting, forcing me to learn a lot about the civil law system, since the court is based on Cambodia s civil law system (lifted almost exactly from French law). Differences exist in the ways in which the prosecution and defense file motions and question witnesses during the trial, pushing me to learn more about this unique trial process. My first question focuses on the length of detention that the court is allowed to hold accused persons before trial. It is a complex question because the statutes contain ambiguous language, as well as an intricate system for how charges are filed, investigated and appealed. During each phase, there are different rules about how long an accused can be held during that particular phase of the pre-trial procedure. Further complicating the matter is the political environment in which the tribunal is taking place. The citizens of the country, as well as the international community, feel strongly that those who are accused should be kept in detention and not allowed out. This is because, locally, the impact of the Khmer Rouge period is widely felt throughout the population and also because in the international criminal justice system, there is a presumption in most cases of crimes against humanity and genocide that the accused has a higher burden to show that there is reason not to keep him or her in detention. For those reasons, the court wants to avoid releasing the accused, but it seems impossible that the court can actually meet all of the deadlines for the proper filing of charges and completion of appeals before the time period allowed for detention expires. This brings up questions of statutory interpretation, in which the court may choose to use an interpretation of the law that allows detaining the accused persons, even if the procedural steps have not all been met officially in time. That of course leads to humanitarian questions about violating the rights of the accused. It sometimes seems that international criminal tribunals carry a belief that they can violate their own rules because of the good work they are doing. However, this is a legal premise that must at least be challenged because it could set an international precedent that could easily make its way into national court systems. This is especially important in Cambodia, where the ECCC is supposed to be a shining example of law done properly for the domestic court system to follow. Therefore, if their best example of a court system violates the rights of accused persons, that then sets a precedent for the entire Cambodian legal system in which rules do not always need to be followed to the strictest letter when the rights of the accused are involved. My second question, about sufficient basis of evidence for bringing an indictment, is even more exciting Continued on Page 15 10

11 Can Act 13 be the lucky number for improving quality of health care in PA. while dramatically reducing medical malpractice cases? By Robert Bond As young lawyers in Pennsylvania, most of us do not know the legal or medical practice as it existed before Act 13 and other judicial changes related to medical malpractice that took place in Pennsylvania in 2002 with its mandatory medical error reporting and need for expert certification in medical malpractice cases. Few people would now doubt that changes ushered in by Act 13 had an effect on medical and legal communities, but the integration of new electronic medical records systems will affect the long-term legacy of tort reform in Pennsylvania. There has been a lot of talk recently regarding health-care reform, which culminated on March 23, 2010, when President Obama signed the new Patient Protection and Affordable Care Act (hereinafter, the Affordable Care Act ) (more information on this topic can be found at While the newly-enacted Affordable Care Act will take years to be fully implemented, here, in Pennsylvania, a number of steps are already proving that health-care reform can be achieved by a combination of legislative and judicial steps that can be combined to achieve drastic results in lowering professional medical liability insurance cost and lowering the number of medical malpractice claims across Pennsylvania. Attempts at curtailing health care costs, which are intimately tied to medical malpractice insurance costs, while improving patient safety, date back to the mid-1970s when Pennsylvania enacted Medical Professional Liability Catastrophe Loss Fund in section 701(e) of the Health Care Services Malpractice Act, Act 111 of 1975 (40 P.S ) that became known as CAT Fund. It was universally accepted that professional liability insurance for medical professionals continued to rise with an increased number of medical malpractice claims, despite the enactment of the CAT Fund. As health insurance premiums continued to rise and doctors fled from Pennsylvania s high medical liability insurance premiums, the quality and availability of health care in Pennsylvania came into focus under then-gov. Mark Schweiker, who worked with the legislators and judicial branch on what would become known as Mcare or Act 13. Act 13, better known by its acronym of Mcare, which stands for Medical Care Availability and Reduction of Error Act, was signed into law in It was designed primarily to address three areas that intersect medicine and law and promised to reduce medical errors, which would in turn improve medical care, thus lowering the number of medical malpractice cases while lowering malpractice insurance premium and increasing the availability of medical malpractice coverage for clinicians. The Mcare original promise was to improve patient s safety by reducing Act 13, better known by its acronym of Mcare, which stands for Medical Care Availability and Reduction of Error Act, was signed into law in the number of medical errors. For that purpose, the act created a Patient Safety Authority ( PSA ) to review reportable medical errors and recommend improvements based on the peerreviewed process. Serious medical errors that occurred in hospitals or free-standing surgical facilities were made reportable to PSA as they occurred. In addition, the medical facilities are now required to develop and implement patient safety plans. Medical professionals are now obligated to report medical malpractice claims against them to the state licensing boards. This requirement equally applies to nurses, nurse practitioners, physician assistants and physicians, as well as all other medical professions that are licenses by their respective medical boards in Pennsylvania. Under Mcare, the medical boards are obligated to investigate medical malpractice claims. To strengthen the reporting requirements, the act also provides for penalties for non-reporting or delayed reporting of up to $10,000. Since 2004, web-based reporting was mandated 11 under the newly-created Pennsylvania Patient Safety Reporting System ( PA- PSRS ) under the umbrella of PSA. For the past five years, all medical facilities must report medical errors through web-based PA-PSRS system. The reports are then compiled and analyzed on a quarterly basis to advise health-care facilities and providers of immediate proposed changes that should be instituted to reduce serious medical events that, in combination with other changes, can lead to better medical care and reduced numbers of medical malpractice claims. Most insurance carriers in Pennsylvania were also required to offer discounts to medical facilities for reducing medical errors in connection with implementation of recommended patient safety programs. The practice of required reporting and subsequent reduction in insurance premiums was quickly named the stick and the carrot of the Mcare reform. When Mcare replaced Cat Fund, it not only replaced how the financial pool funds were distributed, it also allocated a portion of the punitive damages award in malpractice cases, as well as assessments on doctors, to supplement traditional malpractice insurance. In addition, Mcare modified what was known as a collateral source of recovery where the claimants could recover from multiple sources and abolished that practice. The future damages awards were allowed to be paid over time in some circumstances if the total was more than $100,000. Less noticeable changes were also implemented by Mcare, such as reducing minimum required medical malpractice coverage from $1.2 million to $1 million and a discount for part-time physicians. One of the main purposes of Mcare was a tort reform in connection with medical malpractice lawsuits. The Act 13 prescribed courts to consider the impact of awards on access to health care in the local community and forced the courts to specify particular factors if the court refused to lower a particular award as requested. A statute of repose was a compromise between a common law practice in which the statute of limitation of two years on medical malpractice cases was all but canceled out Continued on Page 12

12 Can Act 13 be the lucky number Continued from Page 11 by multiple exceptions, such as a minor s age or discovery. Current statute of repose mandated an absolute seven-year time limitation in addition to the statute of limitations with still and exceptions for foreign objects left in the body and minors. The common law rule on expert witness was also modified so that now an expert witness in a medical malpractice case is required to satisfy prescribed qualifications. If one wants to qualify as a medical expert, he or she should be able to prove that he or she is in clinical practice or teaching of medicine. Experts on the standard of care must also show that they are in the same or similar specialty as the defendant physician. If the defendant physician is board-certified, the expert witness must also be board-certified in the same specialty. Another major change that was adopted by the Pennsylvania Supreme Court was the requirement of filing a medical malpractice claim in the county where the alleged mistake took place. This drastically limited the practice known as venue shopping by plaintiffs attorneys looking for more sympathetic jury verdicts. Different from the common law, hospitals are no longer accountable purely on the basis of ostensible agency where the defendant doctor is a member of their medical staff. Ostensible agency was modified to force the plaintiff to show that (i) a reasonably prudent person would have believed that the care was being rendered by the hospital and/or (ii) the hospital advertised or otherwise represented that the care was being rendered by the hospital. Given that, despite the modification of the ostensible agency, it is still not an overwhelmingly hard point to prove, if the injurious conduct occurred on the premises of the hospital where the defendant was a member of the staff. The changes to the common law were adopted by the Pennsylvania Supreme Court and codified into statutes by the General Assembly to become law. Not all agreed in the years following passage of Act 13 that such a historically unlucky number assigned to the act can make a real impact on quality, affordability and availability of health care in Pennsylvania. Looking at the numbers provided by the state Department of Health, the cost of medical malpractice insurance in Pennsylvania has either decreased or remained the same over the past five years. The two largest providers of liability insurance in Pennsylvania, PMSLIC and MedPro, have decreased their rates or kept them unchanged three years in a row. This can be seen as a drastic change from years just preceding judicial and legislative reforms that started with the passage of Act 13 in Again, look at the biggest providers of liability insurance who on average increased their premium in 2002 by 42.5 percent in one year, followed in 2003 by another increase of almost 30 percent on average! Tied with the diminishing premiums are the amounts that Mcare is required to pay as the supplement to the primary liability insurance. It was reported by Gov. Ed Rendell that Mcare payouts dropped for the fifth-straight year in 2008 and were about 50 percent less than when he took office in 2003 and were only $174 million versus more than $350 million. In terms of medical malpractice cases, there were a total of 2,731 cases from ; with the passage of Act 13, the numbers dropped to an average of 1,674 cases per year or a total of 11,772 cases over the seven years that the act has been in effect. Simply looking at the numbers, it is encouraging to see that the tort reform in Pennsylvania is limiting the number of medical malpractice suits while at the same time preserving the rights of patients who are injured by medical mistakes. The act s premise was to improve quality of medical care by promoting error-free health care via reporting and improving of delivery of care, thereby reducing the cost of health care in connection with professional liability insurance and reduction of medical malpractice law suits. Just as many new lawyers were taking the bar exam in February 2010, Pennsylvania took another major step toward improvement of health care while reducing the number of medical malpractice cases by expanding its computerized error-reporting capabilities. The Governor s Office of Health Care Reform received $17 million in federal Recovery Act funds (American Recovery and Reinvestment Act of 2009, Pub.L ) to further connect health care practitioners, patients, hospitals and pharmacies via a secure network to give them unified access to electronic medical records ( EMR ), while providing almost an instantaneous error-reporting mechanism. One can only imagine how the EMR soon will change the anatomy of medical malpractice lawsuits with yet uncharted issues of privacy and new definition of discoverable information and possible spoliation of evidence issues which would soon need to be redefined by the new generation of lawyers who would be facing those changes. Robert Bond is a recently-admitted attorney and partner at InstantLaw.com, a multinational legal web-portal. He also serves as a physician assistant at Gabay ENT and Associates in Philadelphia. He received his B.A. from Arcadia University, graduated from Philadelphia University s physician assistant program and received his J.D. from Widener University Law School. Find the PBA YLD on To become a fan of the PBA YLD s Facebook page, go to and find PBA Young Lawyers Division. You must have a Facebook profile to become a fan. Follow the prompts to sign up. 12

13 How young lawyers can excel at ediscovery By John Larkin The discovery process of , electronic documents and meta-data ( Electronically Stored Information or ESI ) is qualitatively different from paper discovery; while paper discovery is limited by the cost of its creation and storage, ESI costs next to nothing to produce and can be stored indefinitely for little more. The scale of this distinction is vast: In 1992, Phillip Morris was able to demand discovery of more than 32 million s generated by the White House during its RICO lawsuit. 1 More recently, about half a dozen cases have begun in which the total number of electronic things brought into play... went over one billion. 2 Clearly, the future of discovery a field which is disproportionately filled by young attorneys is in ESI. Because of their greater familiarity with the source medium, moreover, ESI presents important opportunities for young attorneys. This article briefly introduces the ediscovery process and suggests three simple strategies for young lawyers to maximize the advantage they already enjoy: (1) know your software, (2) avoid expensive discovery requests, and (3) craft keyword searches carefully. THE MECHANICS OF ediscovery. Most companies store their current data on one or a few on-site servers. Information piles up quickly though, so the data is regularly backed up to more permanent storage media and transferred off-site for safekeeping. The data that was originally on the server is then destroyed in order to create room for new s and documents. Thus, the off-site backups are often the only copy of ESI more than a few months old. Recovering the data on backup tapes, however, is time consuming and expensive. The tapes have to be transported back to the site, and then the data must be deposited in a single location for searching. Sometimes this process will require a litigant to invest in expensive new equipment, especially if the storage media is obsolete. After the data is recovered to a single location, the preferred discovery method is to produce an index prior to searching. 3 When creating an index, the search tool makes a single pass over each document and culls that document s readable data into a matrix. 4 Subsequent searches are made across the index, as opposed to the full text of the documents themselves, which allows for greater search speed. In addition to increased speed, the use of an index permits users a more robust search in several respects. Where backups are stored on multiple disks, tapes, hard-drives or some combination of the three, each search must be run separately on every item; a central index simplifies the process by permitting users to run searches across a single discovery database. Also, indexing allows users the opportunity to choose waste words which will be excluded from the index. Waste words like and, to, not and the are not valuable as keywords, because they will predictably exist in every document within the search set; users can therefore increase search speed by excluding these waste words from the index. Finally, indexing permits users greater control over the location of the search terms. For instance, users can specify that the search engine only return documents which contain keywords in the document s title, an s re-line or the document s author field. The real power of field searching is that it permits users to impose sequential winnowing in order to prevent false positives. For instance, instead of requesting every document that contained the word commute and Larkin potentially a huge number users are able to request documents that contain the word commute in the title and Larkin in the author field presumably a much smaller number of documents. KNOW YOUR SOFTWARE. One of the most important and most frequently overlooked aspects of ediscovery is the software used to index and search the data. Software that doesn t suit the unique requirements of the task at hand will result in false negatives which will mean higher costs in the long run. For instance, not all indexing software is able to read every type of file. Text files created in programs like MS Word, Open Office or Word Perfect will probably be fine for most indexing engines; more complicated files with heavy visual components, on the other hand, may not be. If the sought-after document was likely created in AutoCAD or Photoshop, a standard indexer may 13 skip it completely. It s also important to consider whether to use the software s waste word filter. For instance, many documents are likely to contain the word no at least once, so it makes sense to exclude no from your index. On the other hand, without a narrowly tailored use of the waste-word filter, some engines will filter the No right out of North. If that happens, then searches for North Carolina will result in false negatives. Leaving waste words in your index will result in longer searches but relieves nagging doubts about the completeness of your search. Regardless of whether a young attorney chooses to use a wasteword filter, it is crucial to know how the filter works. ediscovery IS EXPENSIVE, SO DRAFT YOUR DISCOVERY REQUESTS CAREFULLY. The creation of a searchable index can take weeks. Afterward, even a single keyword search can take hours or even days. Subsequent sampling to determine the error rate of the search can take additional time, all of which may be wasted after learning that the search failed to include one or more critical synonyms, names or date ranges. Courts have recognized that the scale of ediscovery makes it expensive. For instance, in Quinby v. WestLB AG, the plaintiff, after alleging gender discrimination, requested that nineteen current and former WestLB employees accounts be searched for certain terms alleged to refer to plaintiff in particular or that are potentially sexist in general. 5 The plaintiff s discovery request also sought s relating to discrimination against other women at WestLB and s showing that men were more highly compensated than women. 6 The plaintiff s request was ultimately limited by the court to searches of seventeen current and former WestLB employees, utilizing individualized search terms for each employee; the search terms used ranged from 3 to 15 terms for any given employee. 7 In order to produce the requested documents, the defendant was forced to restore and search 171 of its backup tapes, Continued on Page 14

14 How young lawyers can excel at ediscovery Continued from Page 13 on which data had been stored in an inaccessible, compressed format, as well as the readily accessible data stored on its hard-drives. 8 The cost of ediscovery was ultimately $226, nearly a quarter of a million dollars not including the additional costs associated with manual document review for responsiveness and privilege. 9 Similarly, in Bank of America Corporation v. SR International business Insurance Company, Ltd., the defendant requested a third party to produce s from eight people sent over a two-year period that were contained on between 350 and 400 backup tapes. 10 The third party objected to the scope of the defendant s request, and suggested that the total cost of retrieval would be well over $1.5 million. Ultimately, the trial court determined that the defendant had not demonstrated a sufficiently particularized need to justify its request; nevertheless, the court was careful to note that ability to pay is not an issue here and reserved to the defendant the opportunity to make the same request in the future should an appropriate level of need arise. 11 In the face of these costs, discovery requests for any and all ESI is clearly inappropriate and will probably be denied. Even if it isn t, a party that requests too much ediscovery runs the risk of paying part of the bills itself. For instance, in Analog Devices, Inc. v. Michalski, the plaintiff requested a broad search of the defendant s backup tapes, to which the defendant objected, and alleged that such a search would cost approximately $135 for each of the approximately 800 backup tapes a total cost of at least $108, The trial court enforced the plaintiff s original request, but ordered the plaintiff and the defendant to share the costs equally. 13 Asking an opponent to produce any and all documents related to the subject of your litigation may have value during paper discovery; by now it should be clear that doing so during ediscovery will only rack up bills for which clients and supervising attorneys will not be grateful. One partial solution is to carefully draft keyword requests. Because young attorneys are often more familiar with keyword searching than their more seasoned counterparts, this, too, is an area where, with a little attention to detail, they can excel. KEYWORD REQUESTS: FAMILIARITY WITH THE SOURCE MATERIAL IS CRUCIAL. Although keyword searching, especially in conjunction with an index, is now the status quo in ediscovery, the process has well-documented flaws. The importance of familiarity with the subject material when crafting a keyword methodology, for instance, has been well documented since as early as David Blair and M.E. Maron s 1984 paper on Retrieval Effectiveness 14 and is still relevant today. 15 Essentially, Blair and Maron came to the conclusion that full-text retrieval is very difficult to use because its design is based on the assumption that it is a simple matter for inquirers to predict the exact words and phrases used only in the text of documents that they would find useful.... it is impossibly difficult for inquirers to predict the exact words, word combinations, and phrases which are (1) used by all (or most) relevant documents, and (2) used only (or primarily) by those documents. 16 Blair and Maron s study and its successor studies have formed the academic nucleus of a set of keyword cases which urge litigants to cooperate in developing search methodologies. 17 For instance, in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., the trial court was confronted with the issue of how to separate relevant s from nonresponsive files. 18 The responding party proposed a five-word keyword list; the plaintiff suggested the use of thousands of additional search terms, emphasizing the construction issues they were involved in. 19 Because the parties were unable to reach an agreement, the trial court was forced to impose a keyword search. 20 The trial court s major complaint in Gross Construction was that it lacked adequate information to craft an appropriate keyword search methodology. 21 For precisely the reasons identified by Blair and Maron in 1984, the Gross Construction court excoriated the private attorneys for forcing the court to impose a keyword list without the appropriate familiarity with the index. 22 Similarly, in In re Direct Southwest, Inc., Fair Labor Standards Act (FLSA) Litigation, 23 the trial court was confronted with the issue of deciding between the list of keywords proposed by the plaintiff and by the defendant. 24 Although the plaintiff had submitted a proposed list of keywords at the start of discovery, the defendant chose to employ a list of its own, in response to which it produced none of the documents plaintiff had expected to uncover. 25 Direct Southwest neatly underscores the importance of keyword selection. Although the trial court ultimately held in favor of the plaintiff and required the defendant to re-search their index using the plaintiff s keywords, it specifically declined to hold that the defendant s proposed keywords were unreasonable. Under the circumstances of Direct Southwest, therefore, it is conceivable that a reasonable but poorly formulated keyword search will fail to discover relevant documents. Young attorneys should avoid the mistake of the plaintiff in Gross Construction: Instead of drafting huge numbers of keyword searches, the preferred practice is to draft a smaller number of precisely targeted requests. Because young attorneys often have greater experience using Boolean search terms like AND, OR and NOT, they will often be well-suited to drafting robust searches. Paper discovery and document review is too often a prison for young lawyers. By carefully keeping the differences between paper discovery and ESI in mind, new attorneys can realize the comparative advantages of their generation. 1 George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt? 13 Rich. J.L. & Tech 10 (2007). Without automated processes to winnow irrelevant or privileged documents, the review effort for this litigation would take 100 people, working ten hours a day, seven days a week, fifty-two weeks a year, over fifty-four years to complete. 2 John H. Jessen, Special Issues Involving Electronic Discovery, 9 Kan. J.L. & Pub. Pol y 425 (2000). Jessen goes on to underscore that this figure applies only to the relevant, non-privileged, discovery materials, and not to the total number of documents created by the responding parties. This global set was presumably a correspondingly higher number. 3 Id. 4 E.g. paragraph, sentence, field, title, filename, date, and hash value F.R.D. 94, 99 (S.D.N.Y. 2006). 6 Id. 7 Id. 8 Id. 9 Id. Continued on Page 15 14

15 My summer job in Cambodia Continued from Page 10 in international legal circles and has been being hotly discussed at recent conferences. This makes it thoughtprovoking in the context of the ECCC to consider what constitutes a sufficient basis for a closing order. A closing order is similar to an indictment in the common law system in that it is the final document that lays out the charges that will be prosecuted against the accused. There have been two main trends in the standards of sufficiency, with the International Criminal Court holding that a higher level of evidence is required to be the basis of charges. The other trend in the ad hoc tribunals has been generally less stringent. Since, at this point, the ECCC has not filed the closing order in Case 002, my job is to consider the differences and similarities in these standards and to suggest which approach is most appropriate to use when considering the closing order that will be filed by the investigating judges in September for Case 002. In addition to my legal research and writing, I have had the opportunity to work with a couple of other projects run by DC-Cam that have taken me into the provinces to work more closely with local people. We notified survivors throughout the country that the complaints that they had submitted to the court were accepted and placed into the case file for Case 002. When doing the notifications, we also interviewed many of the survivors using video or audio recordings to keep the stories for the next generation. This is one of DC-Cam s main missions for the future, as it wants to transition from an organization that called for and supports the tribunals into a center for research and learning about genocide specifically and the region generally, as well. The other DC-Cam project I joined was one in which we trained provincial teachers to use a textbook created by DC- Cam and supported by the government to teach students the history of Cambodia, with a focus on the period when the Khmer Rouge was in power. The mission is to teach children in Cambodia the past so they can understand the reasons for the present poverty in the country, as well as to prevent atrocities such as those committed by the Khmer Rouge in the future. The project was amazing, not only because of the factual content but also because the teaching paradigm introduced with the materials was very different from traditional styles of teaching in Asia that often focus on rote memorization. Instead, the teaching style encourages student participation, exploration and independent thinking. For me, as a former teacher and a believer in creating lifelong thinkers, seeing pedagogical changes taking place before my eyes was something I could have never imagined when applying for a job doing legal research. This summer has been my dream come true, not only for the legal opportunities in which I ve had the opportunity to look at meaningful questions, but also because of the opportunity to become involved in the community and learn from a culture that looks to both its past and its future. Aimee Haynes, a former teacher of English literature and history, is now a rising 2L at Temple University. She spent the summer following her 1L year working as a legal associate in Cambodia with the Documentation Center of Cambodia. How young lawyers can excel at ediscovery Continued from Page WL (N.C. Super. 2006). 11 Id WL (N.C.Super. 2006). 13 Id. 14 David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System, 1984 (hereinafter Retrieval Effectiveness. ) 15 Baron, Lewis, & Oard TREC-2006 Legal Track Overview 2006, for instance, essentially restates Blair & Maron s original findings. 16 Id. (emphasis in original). Blair and Maron note that in the index which formed the subject of their experiment, formal queries were formulated which contained the word accident(s). Relevant documents which were never discovered during the test, however, used the terms event, incident, situation, problem, or difficulty in place of accident. Failure to search for any of these terms would result in undiscovered relevant documents. 17 See e.g. Victor Stanley, Inc. v. Creative Pipe, Inc., 240 F.R.D. 241, (D.Md. 2008); United States v. O Keefe, 537 F.Supp. 2d 14 (D.D.C. 2008); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008) F.R.D. 134, 134 (S.D.N.Y. 2009) (hereinafter Gross Construction). 19 Id. 20 Id. at Id. In recognizing its own shortcomings, the trial court relied heavily on previous opinions in Victor Stanley, Inc. v. Creative Pipe, Inc., 240 F.R.D. 241, (D.Md. 2008) and O Keefe, 537 F.Supp. 2d 14, as well as Jay Grenig et. al., Electronic Discovery & Records Management Guide: Rules, Checklists & Forms (2009 ed.), 15:15 and The Sedona Conference Cooperation Proclamation (available at SedonaConference.org). 22 Id. 23 Hereinafter Direct Southwest. 24 Civil Action No MLCF-SS (E.D.La. Aug. 7, 2009). 25 Id. John Larkin is a graduate of Oberlin College and Villanova Law School. He is currently an assistant district attorney in the Appeals Division of the Montgomery County District Attorney s Office. 15

16 Securities litigation education: beyond law school By Michael Doluisio and Brielle Rey The ink has not yet dried on your law school diploma and painful memories of the bar exam are still fresh in your mind when you arrive for your first day of work at a law firm. You ve spent the last three years intensely studying the law and feel as though you are ready for almost anything. However, when you arrive, you find out that the firm has already assigned you to a securities litigation matter. It s all you can do not to scream, Help! You don t even know what a security is! You look to your right and see that a friend from law school has joined you at the firm. Unlike you, however, she has always wanted to be a securities lawyer and spent law school immersed in whatever courses she could find that would help her learn more about the area. Nevertheless, even in the midst of your panic, you notice that she seems a little anxious, too. She later confesses to you that she really wants to market herself at the firm as someone who is not only knowledgeable about the black letter law of securities but who understands the dynamics of the practice in the real world. Her fear, it turns out, is from her sinking realization that actually practicing securities litigation is quite different from reading about it in a textbook. Whether you actually find yourself in either of these situations or in between, here are some ideas to help you familiarize yourself with securities litigation beyond what you learned (or didn t!) in law school. You should begin by getting the lay of the land or a general sense of what the field encompasses. For securities lawyers, this means learning something about how corporations are run and how securities are issued and traded. For instance, you can do some reading about the general roles played by corporate executives, board members (both inside and outside) and auditors. With regard to the sale of securities, you should read about how an IPO works and the roles that underwriters, auditors and brokers play in the process. You should also read about how stocks and bonds trade in the aftermarket on exchanges. If you plan to be a securities lawyer, therefore, it is smart to familiarize yourself with the business world in general from day one. Reading publications such as The Wall Street Journal will help keep you up-todate on the business world, as the Journal and other business publications cover everything from the general economy (which impacts securities cases) to the latest initial public offerings to how your client s stock is doing. While there is, of course, no need to memorize the entire newspaper or even read it thoroughly each day, it s important to at least skim the headlines in order to get a handle on what is happening in the world. Of course, learning the nuts and bolts of the securities laws is also crucial to your development as a young securities lawyer. There are many easy-to-find articles that discuss the key litigation-producing sections of the statutes that you will be dealing with as a securities litigator, i.e., the Securities Act of 1933, the Securities Exchange Act of 1934, and, for mutual fund types, the Investment Company Act Here are some ideas to help you familiarize yourself with securities litigation beyond what you learned (or didn t!) in law school. of You may also want to read some leading Delaware cases on key corporate law topics, such as the business judgment rule or the duties of directors in different settings. A wise associate will also keep abreast of changes in the legal landscape, and industry chatter, by seeking out blogs and websites that focus on securities litigation issues. Two blogs you may want to start with are The 10b-5 Daily (www. the10b-5daily.com), which focuses on securities class actions, and The D & O Diary (www.dandodiary.com), which focuses on issues pertinent to the liability of directors and officers of corporations. You may also want to check out www. securities.law.360.com a website largely devoted to securities litigation issues. As this article is being written, for example, The 10b-5 Daily contains summaries of notable recent developments in securities law in front of the United States Supreme Court. Reading such blogs and other industry publications will help you gain a grasp of cutting-edge securities cases, which will make you an asset to your clients. It will also help you to cultivate your own image at your firm as someone who is in the know about the latest developments in the field. Assuming your firm offers them, attending internal training sessions is another great way to get general 16 background knowledge on business and securities. While of course you will want to attend any training offered relating to securities litigation, you should also find out if there are trainings offered to new corporate associates, and see if you can attend those as well. Attending such programs will not only broaden your knowledge of the general field but will also help you to meet other lawyers at your firm who share your interests. Once you ve gotten some general background on the business world and the securities laws, you should consider delving deeper into a specific securitiesrelated topic by attending a relevant CLE. This will be especially helpful should you find yourself staffed on a case that involves an aspect of securities law that is unknown to you or where getting more information about the development of an area of the law, or a specific issue in the case, will better enable you to be an effective advocate for your client. For example, most business cases require lawyers to understand how to read basic financial statements an income statement, balance sheet and statement of cash flows and many securities fraud cases involve even more complicated accounting concepts. Seeking out a CLE that provides accounting for lawyers may be a quick way to obtain basic information about financial statements and accounting without having to sign up for an entire college class on the subject, and what you learn in CLEs can help you form a base of knowledge for many other cases. Finally, as you become more immersed in the world of securities litigation, you should begin to make connections with others in your field. Attending conferences with a focus on securities or business or joining relevant groups within the bar association will add depth and breadth to your practice. The Pennsylvania Bar Association, for example, has a Business Law Section. Joining this section would be a great idea for a budding securities lawyer who is interested in keeping her fingers on the pulse of what is important to the business community. Attending conferences and joining organizations will also enable you to learn from more experienced lawyers and find common ground with newer lawyers. Indeed, such connections may even help you begin to build your book of business as you take your newfound Continued on Page 18

17 Class actions 101 By Matthew D. Schelkopf I can vividly remember being a newly-admitted attorney and my abrupt introduction to the practice of law. It was my first week as a criminal prosecutor and the nervous excitement was overwhelming. Shortly after lunch, a colleague recommended that I observe a D.U.I. trial where a plea deal had unexpectedly gone awry. I quickly left my office and headed for the second-floor courtroom in hopes of arriving before the jury panel entered. As I hurried up the stairs, my supervisor the Mr. Miyagi of trial instruction rushed down the stairs and handed me a blue case file. What s this? I asked. Start picking a jury in courtroom two, I ll be right back, he said. While entering the courtroom, I quickly skimmed the police affidavit with the jury panel hot on my heels. It was my first trial, and I was more nervous about picking a jury than the actual trial itself, but why? Looking back, it was likely a fear of the unknown. It was a new experience that I wasn t taught in law school and, for obvious reasons, was absent from most lawyer shows. Regardless, voir dire and trial went off without a hitch (or at least with only minimal hitches) despite my supervisor not being right back. I soon realized that the subject of jury selection a fundamental area of trial was often overlooked in the training of new trial attorneys. Years later, I entered private practice and was soon practicing under the mysterious umbrella of class action law. What in the world is a class action? Did I miss the day we covered class actions in law school? I once again felt like that new attorney trying to understand jury selection while the judge instructed me to proceed. Besides Gene Hackman or Julia Roberts playing the occasional movie character, the realm of class action law is an often overlooked, yet silently accepted, mystery within the legal community. Class action law is an area that we, as attorneys, should conceptually understand since any given case may have the potential to impact a larger number of similarly situated people. Skipping Class is Trouble In 1938, Congress enacted the Federal Rules of Civil Procedure and brought to life the class action device through original Rule 23. In 1966, the rule was revised from the original enactment thereby paving the road for the modern class action structure. Generally, a class action is simply a procedural device that allows a named plaintiff (or plaintiffs), acting as representatives for a larger group of individuals (the class) to bring a case where they have experienced the same wrong at the hands of a defendant (or defendants). In a nutshell, it allows a small number of plaintiffs to represent and bind an entire class through a single lawsuit, while providing a manageable docket for the court. However, class actions do more than just provide a practical litigation vehicle for plaintiffs and the court. The justifications that led to the development of the class action include the protection of the defendant from inconsistent obligations, the protection of interests in absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims. United States Parole Comm n v. Geraghty, 445 U.S. 388, (1980). Many legal experts may even opine that class actions are favorable to defendants, since they can offer a more economical and efficient avenue for them to litigate a case rather than defending hundreds, if not thousands, of individual cases arising from the same or similar allegations. In certain circumstances, a class action can also be advantageous to a defendant in obtaining a broad release from future cases. Before proceeding as a class action, the prerequisites of Rule 23(a) must first be satisfied: (1) the class is so numerous that joinder of all members is impractical [ numerosity ], (2) there are questions of law of fact common to the class [ commonality ], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [ typicality ], and (4) the representative parties will fairly and adequately protect the interests of the class [ adequacy ]. Fed. R. Civ. P. 23(a) (1)-(4). In addition to satisfying the numerosity, commonality, typicality and adequacy requirements under Rule 23(a), a district court must also find at least one of the following elements exist in order for a case to proceed as a class action: (1) prosecuting separate actions by or against class members would create a risk 17 of inconsistent rulings or adjudications with respect to individual class members that would dispose of other class member claims so as to substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that generally apply to the class, so that final injunctive relief or corresponding declaratory relief is appropriate to the entire class; or (3) common questions or law or fact predominate over any questions affecting individual members and that a class action is superior to other available methods of adjudication. Fed. R. Civ. P. 23(b)(1)-(3). In February 2005, Congress enacted the Class Action Fairness Act of 2005 (CAFA), which altered class action practice in state and federal courts throughout the United States. To reduce perceived forum shopping, CAFA, inter alia, changed the rules for federal diversity jurisdiction and removal, thereby enabling most large multi-state class cases to be filed in or removed to federal court. How About Some Notice? Filing a complaint with the words Class Action included in the caption does not guarantee its automatic inception as a class action case. Instead, the case does not officially receive class action treatment until the class has been certified by the district court after it performs a rigorous analysis to ensure that the applicable Rule 23 requirements are satisfied. The Third Circuit recently laid out the roadmap of how these standards are to be applied in the landmark case of Hydrogen Peroxide. The plaintiff s motion for class certification usually occurs after plaintiffs have had some but not necessarily a complete opportunity to obtain discovery relevant to establishing the requirements for maintaining a class action as set out in Rule 23(a) and (b). A motion for class certification should persuasively set out the argument that the requirements for maintaining a class action under Rule 23(a) and (b) have been met, evidenced through supporting discovery exhibits, and propose a specific class definition describing the persons to be included in the class. The court is required to determine whether to certify the case as a class action at an early practicable time. Fed. R. Civ. P. 23(c)(1) Continued on Page 18

18 Class actions 101 Continued from Page 17 (A). In practice, the plaintiffs deadline for filing their class certification motion is often set out in a court s case management order or by local court rules (the E.D.Pa. and M.D.Pa. both require filing within 90 days after the filing of the complaint). Class certification is a hotly disputed area, since a court s denial of certification usually results in an end to further litigation and a defeat for the plaintiff(s). If the court grants class certification, counsel must decide when and how to go about notifying the class members about the litigation. Rule 23(c)(2) sets out the requirements of notice going to class members in class action suits. Notifying the class members is another area that can be disputed between the parties and expensive to administer. Settlement When s the Party? With such huge amounts of potential liability at stake it should come as no surprise that many class actions never go to trial. As with most cases, a class action can settle at a vast array of different stages. Class action settlements seem to most often occur after the case has survived two hurdles: the defendant s motion to dismiss and the court s granting of class certification. Unlike many civil cases, however, the parties collective agreement to settle a class action case is just the beginning of what may be a long road to resolution. Under Rule 23(e), the court must approve all proposed class-wide settlements, voluntary dismissals or other compromises. This requires notice of the proposed settlement to be sent to all class members who would be bound by the settlement and who can be reasonably identified. If the settlement binds class members, then the court may approve it only after a hearing and making a determination as to the fairness, reasonableness and adequacy of the proposal. The party seeking approval must file papers outlining the proposal and advocating its position for preliminary and/or final settlement approval by the court. Rule 23 also provides an opportunity for those class members to object to the proposal which may result in an additional review of the merits of the proposed settlement. The 2005 enactment of CAFA now also requires that the appropriate federal and state officials be notified of class action settlements, with time to comment before finalization of the settlement. 28 U.S.C The modern day class action has evolved into many pieces working in unison with the goal of judicial effectiveness and efficiency. At first, attempting to understand and undertake work on the complexities within most class actions can be overwhelming, not unlike my initial introduction to jury selection. However, it s important to realize that the bubble of mystery surrounding class actions is easily burst when we take the required time to dissect and examine each piece of the equation individually. Matthew Schelkopf is an associate with the class action law firm of Chimicles & Tikellis LLP in Haverford. His primary practice is the representation of consumers in class action cases brought in federal courts across the country. He is a former criminal prosecutor with the District Attorney s Office of York County, where he litigated numerous felony and misdemeanor cases to verdict. In 2006, he was assistant trial counsel in a Philadelphia County complex matter that resulted in the largest state jury verdict recorded for that year. Securities litigation education Continued from Page 16 knowledge about securities litigation and educate others about upcoming hot topics in the field. Whether the world of securities litigation is completely foreign to you or whether you already have some background in the field, following the advice given in this article should help you make a great impression as a young associate from your very first day forward. Michael Doluisio is a partner in the White Collar and Securities Litigation group at Dechert LLP in Philadelphia. Brielle Rey is an associate in the White Collar and Securities Litigation group at Dechert LLP in Philadelphia. Pba midyear meeting Feb. 2-6, 2011 Casa Marina Resort in Key West, Fla. WATCH THE PBA WEB SITE (WWW.PABAR.ORG) FOR DETAILS COMING SOON! 18

19 Helping to develop the next generation of PBA leaders By Susan Etter Before you are a leader, success is all about growing yourself. When you become a leader, success is all about growing others. Jack Welch As one of her first official acts, Pennsylvania Bar Association President Gretchen Mundorff announced the Bar Leadership Institute will once again be part of the PBA s ongoing efforts to recruit and develop the best leaders for the organization. Mundorff is a strong proponent of leadership development and mentoring programs. She often reflects on her good fortune to have had so many great mentors at various times throughout her life who have helped to shape and mold her career and have encouraged her to explore leadership opportunities at the PBA. She shares that she sees the Bar Leadership Institute as another action the PBA can take to reach out and mentor young lawyers who have demonstrated leadership abilities, but for one reason or another, have not had exposure to opportunities that would advance their potential. The Bar Leadership Institute is a way to ensure diversity in our future leaders. Mundorff says, We are going to make every effort to identify and prepare the best young lawyers who are representative of the diversity within the PBA membership to take leadership positions. Both of this year s Bar Leadership Institute co-chairs, Mary E. Schellhammer and Paul C. Troy, have participated in past BLI programs; Schellhammer as a BLI member and Troy as a former BLI co-chair. In fact, when you look at all those serving in leadership roles within the PBA, you will find many past participants of the PBA Bar Leadership Institute. This was exactly the intent of the program when it was originally developed by then-pba President Art Piccone during his presidency in The first chair of the Bar Leadership Institute was Mundorff. What is the Bar Leadership Institute? The Bar Leadership Institute is designed to provide emerging leaders, representing a broad cross-section of the diversity of the PBA membership, with an opportunity to learn about the PBA while actively participating in key meetings. Participation in the Bar Leadership Institute provides numerous opportunities to network with PBA members and leadership and helps build lasting relationships that will serve as an invaluable resource for future success. The Bar Leadership Institute looks to the future of the organization by developing well-informed, committed leaders who will serve the PBA for many years to come. It familiarizes participants with the day-to-day operation of the association, provides a foundation on governance and policy issues and introduces the participants to PBA staff and resources. How does it work? The Bar Leadership Institute engages future PBA leaders in the governance structure by requiring attendance at three key yearly meetings (the YLD Summer Meeting, the November Board of Governors, Committee Section Day and House of Delegates meetings, and the Conference of County Bar Leaders (CCBL) in February). The costs of attending these three required meetings (rooms, meals provided at the events and registration fees) will be paid by the Pennsylvania Bar Association. Participation in other important meetings and events throughout the year (like the Day on the Hill, statewide mock trial championships, committee/section meetings and the Annual Meeting) are also encouraged. An orientation process introduces BLI participants to an overview of the PBA and the various leadership opportunities that exist within the organization, and each BLI participant is paired with an experienced and committed mentor who is a member of the Board of Governors. Active and engaged participation in the Bar Leadership Institute also provides opportunities for professional development and learning. Participants can earn CLE credits and interact with colleagues who practice law in their areas of interest. Who are the members of the class of ? The class size was limited to 11 lawyers. To apply, candidates had to demonstrate leadership ability, commit to attendance and participation in the required events, be currently licensed to practice law in Pennsylvania, be a member of the PBA, and be age 38 years or younger or have practiced five years or less. Announcement of the Bar Leadership Institute was shared through the YLD and numerous other PBA leadership groups, county bar associations, the PBA website and the PBA E-News. Each candidate submitted an application, personal statement, resume and two references. Applications were due June 22, According to BLI Co-Chair Schellhammer, 34 applications were received. Overall we were very happy with the response to the Bar Leadership Institute. We received many well-qualified candidates, making the selection process difficult. Ultimately the class we have chosen does in fact represent all kinds of diversity in the practice of law in Pennsylvania. This should make for some interesting conversations within the group. We are looking forward to hearing their thoughts and ideas about the future of the PBA and the needs of our younger members. The lawyers (listed with zone, county/city and firm or employer) chosen for this year s class are: Laura Evans, Zone 3, Dauphin County/Harrisburg, Eckert Seamans Cherin & Mellott, LLC. Sarinia Feinman, Zone 9, Montgomery County/King of Prussia, Vetrano & Vetrano. Sara Flasher, Zone 12, Allegheny County/Pittsburgh, DPW Administrative Law Judge. Bernard John, Zone 6, Fayette County/Uniontown, John & John. Guerline Laurore, Zone 11, Potter County/Coudersport, Law Office of Guerline L. Laurore PC. Traci Naugle, Zone 8, Blair County/Altoona, Sullivan, Forr, Stokan, Huff & Kormanski. Joo Y. Park, Zone 9, Montgomery County/Norristown, High Swartz LLP. Continued on Page 23 19

20 Why such a delay? An overview of the Veterans Disability Claim Process By Jeremiah J. Underhill Whether it s a veteran just returning home from Iraq, Afghanistan or one from the greatest generation who served in WWII, he or she may share the problem of waiting several years for veteran disability benefits. This is not a new problem, and in fact, it has been staring us down for more than 30 years. The last five administrations have clearly passed the buck to the following administration and done little to nothing to improve the disability compensation process. (Harry Truman would cringe.) Now to understand where we re at, we need to understand how this all started. The roots of the Department of Veterans Affairs began in 1862 when Congress passed the General Law System that established the Pension Bureau. The Pension Bureau was solely responsible for the distribution of veteran disability benefits from In 1930, the Veterans Administration (VA) was formed, and in 1989, President George H.W. Bush transferred the VA duties to the Department of Veterans Affairs (DVA) and elevated the director to a cabinet level position. It is important to note that from there was not judicial review for a veteran disability compensation decision. Today there are several layers of appellate review available to a veteran whose claim is denied in part or full but the wait, as you ll see, could be a long time. The claim process begins when a veteran files a claim with one of the 58 DVA regional offices. There is at least one regional office (RO) located in every state, as well as Puerto Rico, Washington, D.C., and the Philippines. The regional office will then issue a rating decision, and if the claim is denied in part or whole, the veteran has the option to appeal the decision. The veteran has two appellate options at this point: 1) They can appeal to the Board of Veteran Appeals or 2) They can request that a Decision Review Officer (DRO) at the regional office takes a second look at the claim. Under either option, the veteran will have one year from the date of the rating decision to file an appeal. If the veteran chooses the DRO process, the claim will be reworked by a DRO at the regional office, and a new decision will be issued. If the veteran is unsatisfied, he/she can then appeal to the Board of Veteran Appeals (BVA). A veteran can also appeal the initial RO decision to the BVA and can request a hearing before a BVA judge. If the veteran receives an unfavorable decision from the BVA, he/she may appeal to the United States Court of Appeals for Veteran Claims (CAVC). The veteran must file a notice of appeal to the CAVC within 120 days of receiving the BVA decision. The CAVC is an Article I court that has exclusive jurisdiction over review of BVA decisions and is currently comprised of seven judges appointed by the President and confirmed by the Senate. Each judge serves a 15-year term. The court will only review BVA decisions for errors of law and clearly erroneous errors of fact. The veteran may appeal the CAVC decision to the U.S. Court of Appeals for the Federal Circuit and from there, the U.S. Supreme Court. The U.S. Supreme court rarely grants certiorari for veterans law cases. Now what does all this mean? How long does it take for a veteran to get he/ she benefits? The initial claim decision being issued by the RO takes an average of 196 days. In 2007 the DVA added more than 250,000 new beneficiaries. This doesn t seem too bad so far, but when we look at the appeals process, we see the problem. The average time to receive a DRO decision after an unfavorable RO decision is 686 days and even worse is the 971 days it takes a veteran to get a decision from the Board of Veteran Appeals. If a veteran chooses to appeal a BVA decision, it will take about 351 days for the CAVC to decide on the review. Currently percent of the cases that file a notice of appeal with the CAVC are remanded. Now the grand total for a veteran disability compensation appeal is about 1,518 days (4.15 years), not considering that a veteran may decide to go the way of a DRO and then have to appeal to the BVA. Many veterans go up and down this appellate ladder several times because of the high remand rate for cases filed at the CAVC level, so you can see how this process could take 10 to 12 years or longer. The harsh reality is that because of this long, drawn-out process, the DVA has amassed a large backlog of cases on appeal. In 1998 the DVA had a backlog of 250,000 to 350,000 cases, and that number jumped to 400,00-500,00 by 2004, and today stands somewhere between 900,00-1,100,000. What s the problem? Well, I can tell you what doesn t appear to be the problem: funding for the DVA. The DVA budget has grown from $48 billion in 2001 to $90 billion in 2008 and has now topped the $100 billion mark. The backlog also can t be blamed specifically on the rise in veterans because of the wars in Iraq and Afghanistan, because the vast majority of veterans who have claims on appeal served before 2000 (particularly the Vietnam era). It remains to be seen if the current administration will fall in line with the past five administrations and simply pass the buck or if they ll implement real administrative changes that will be successful in redirecting the DVA ship. We certainly owe it to all those brave men and women who proudly served and continue to serve today to steer this ship in the right direction. Jeremiah J. Underhill works as a legal research consultant and court-appointed attorney for the Orphans Court of Dauphin County. He s an adjunct faculty member at Widener Law, Central Pennsylvania College and Colorado Technical University. 20

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