AWBPC Quarterly News:
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Gregory et al. v. Greguras et al., No. 1467 MDA 2015 (September 20, 2018), En banc panel, in case of first impression, reverses non-suit and remands for discovery, updated expert reports and new trial where trial court (same judge as was recused in Babb) allowed at trial waiver of attorney client privilege which had been asserted throughout until trial agreeing trial by ambush not permitted. En banc Court also rules that authentication of decedent's estate calculation notes was sufficient and document was not hearsay in context used.Petition for Appeal in the Pa Supreme Court pending.
Babb v Geisinger Clinic, No. 1998-1195 (Centre County Court of Common Pleas, 5.5 Million Dollar Unanimous Jury Verdict) after 20 years, three trips to the Pa Supreme Court and countless depositions and motions, Dr. Babb finally got his day in court. The Jury deliberated for about two hours had jury instructions re-read to them, and then delivered a unanimous verdict that Dr. Babb was not an at will employee, that his employment agreement was materially breached and that he suffered damages in the amount of $5.5 million dollars. Geisinger raised multiple issues and seeks either to throw out all damages or to have a new trial. In our cross appeal we seek prejudgment interest (which would more than double the verdict with interest for the 21 year period from termination to verdict. ALL POST VERDICT MOTION WERE DENIED, Appeal Pending, Briefs filed, awaiting reply brief and argument..
Update: the American Medical Association, the Pennsylvania Medical Society and the American Association of Physicians & Surgeons filed Amicus Briefs in Support of Dr. Babb.
CenturyLink loses bid to compel arbitration of 6 figure failure to pay for water damage remediation, restoration, repair services claim by my client a local ServiceMaster franchisee, after remand from Superior Court for an evidentiary hearing. Case back on appeal. PJ Placey filed his Supplemental opinion Briefs filed awaiting argument date.
Juniata County: Energex PO's to my Client Good's Complaint Denied in business easement and boundary dispute.
Philadelphia County: Markley v. D'Angelo et al., PO's denied after transfer to Philly from Dauphin. Claims against attorney and firm regarding funds held for client.
In Memorium: Previously, I have posted in remembrance of my parents William and Anne Barbin, my grandfather/mentor Andrew J. Gleason, my friend and colleague, in law and politics Jason Kutulakis, and Summit County GOP Chairman for nearly 4 decades Alex Arshinkoff, with whom I worked in the 1984 Reagan campaign. More recently I posted regarding the passing of my Father-in law, Charles P. Gerstenmaier, as good a man as I have known and a second father for 32 years.As soon as possible I will add my friend, political colleague and client Mark Carrig, like Jason and Alex gone too early.
Quarterly Update: The seasons continue to turn and I continue to enjoy scenic vistas as I cross the Commonwealth for matters in Cambria, Centre, Juniata, Lebanon, Lycoming, Luzerne, and Montgomery counties, as well as enjoying a little more time closer to home in Cumberland, Dauphin, York and Lancaster counties.
Big win on the Estate case before the Superior court en banc. Three new appeals filed, in two I am appellee. Received a series of favorable rulings this summer in the cases listed above. Depositions and paper discovery fill my days as usual. No trials scheduled yet. one big case headed toward trial involves Lyme Disease also likely to have first impression implications. Another involves delay in engineering services for a chicken farm. Another interesting case on the horizon centers on the limitations on contempt powers relating to failure to pay on Civil Orders and attempts to imprison someone who claims a simple inability rather than unwillingness to pay. Never a dull moment.
After previously recognizing my Pro Bono Efforts efforts in their newsletter, The Pennsylvania Bar Association awarded me a 2018 Pro Bono Award. While Wills for Heroes work was singled out, it also related to participation in Mock Trial and other PBA Pro Bono activities during the past three decades.
Wills for Heroes events continue. I participated in Dauphin, Cumberland, Lancaster, and Lehigh events last year. We start at Widner in Dauphin County February 9, I will be there though I start my day at the Republican Committee endorsement Meeting in Cumberland County. I am also looking forward to the Stand Down Event for Homeless Vets, a PFA Court stint, a Pro Bono Custody mediation and PBA Mock trial along with a Dickinson Law Mock Malpractice Trial event.
Last Quarter I presented for NBI in ESI, Evidence, Advance Employment Issues HR from A to Z, and Improving Litigation Skills programs. I started the year with a national audio program on Mastering Motions In Limine. My next program February 7, 2019, regards the Ethics Of Legal Services Contract and Relationships. On March 5, 2019 I will be teaching several sections of an all day NBI Seminar titled Civil Trial From Start to Finish which will bring be back to the live audience interactive format I love best..
I ended a long run (since 2008) as Precinct Judge/inspector of Elections after others indicated a desire to serve in those positions. This allowed me to return to GOP Committee work, which I had been doing on an appointed basis, except on election days. I was elected to a 4 yer term for Upper Allen Precinct 1. While we lost tough Senate and Governors races against incumbents, we held off a challenge to Congressman Scott Perry, who had been targeted as a result of the eleventh hour redistricting, and subject of massive out of district financing. Scott is a great guy and I was proud to row an oar for him in that effort.
Diane G. Barbin, Business Manager. Diane's necessary assistance following my long time office manager's retirement is being lightened following the new year to focus on business/payments matters, with our new employee picking up the other functions.
Office Manager. Keyanna Perez, she is currently juggling a new born and new responsibilities, crib in the office and files at home. Just like we did for our female law clerks at Judge Kelly's three decades ago. so happy to benefit from her strong organizational skills.
AWBPC Practice Summary
Law and politics are the art of the possible, but often depend on the personal. Ethical lawyers do not make up facts (or allow their clients to do so). Lawyers also do not make up the applicable laws, or control their interpretation.
What lawyers actually do is apply their education, experience and creativity to determine options and maximize possible outcomes. Winning, whether it is a simple contract negotiation or full blown litigation, is generally about marshaling and organizing facts, law and theories to move the resolution from one end of the range of possibility/probability to the other.
While some clients, either from the nature of their business or their temperament, may be frequent fliers, the vast majority of clients are first time or infrequent fliers, and few are actually looking forward to the trip.
I am an Attorney and Counselor at Law. Counseling is an important aspect of the job, particularly with regard to litigation which will affect the individual his or her family, business and other relationships beyond the direct participants. Knowing it, and being prepared to meet the challenges, is essential to managing the impact of any litigation.
The most important thing an attorney can do at the outset is to summarize the general principles of law involved, assist the client in distinguishing grain from chaff, while putting together the initial narrative that will guide future efforts. The purpose is not merely triage, it is also to give the client the peace of mind that comes from knowing "what can be done, will be done."
In the first three decades of practice, I have generally sought out litigation with an unbalanced field, novel issues or a reasonable degree of legal or factual complexity. One simply does not earn a seat in Valhalla doing only "right angle" accident cases. Having just passed the speed limit (55) I now see some merit in balancing the dragon quests with lesser but still honorable quests. There will always be something in my Scots/Irish Viking heritage that loves a battle with difficult odds; but not every story needs to be an epic.
For that reason, I am now seeking and accepting more mundane matters that experience allows me to resolve with efficiency as well as creativity.
All I really require is that the mutually agreed goals for the representation be something I can accept as honorable. I do not judge; but I have a non-delegable duty to be a reasonable steward of the gifts I was given and have developed. Part of that stewardship obligation is performed in the screening of cases and clients. I am in no sense a gun for hire.
Even as to those clients I decline to represent, I can generally send them in a productive direction. There is a correct tool for every job, and if I am not the correct tool for a particular job and I can think of others who might be, I will refer the prospective client to them. A jack of all trades, can master none. That is particularly true in the practice of law.
In recent years, I have begun to accept some less complicated work closer to home. I have reached a point in my career where an occasional less complicated matter closer to home can seem an altogether pleasant break from the grind of circuit riding litigation. At the same time, I love the adventure involved in traveling to and practicing in the courthouses and communities of this great Commonwealth. Often the highlight of the day is not in Court but in the place I stop to eat and meeting people I have not previously met and may never meat again.
There was a time when I said, "no Criminal, no Divorce, no Bankruptcy; no exceptions." God laughed.
Peculiar circumstances would then draw me into litigation in family law, estates and bankruptcy matters. I remain circumspect, but I no longer have any hard exclusions. It is likely the trend will continue, if only because the cases are more interesting than I had expected, and there is often a call for mediation skills to reach creative resolutions in such cases to avoid litigation which will only serve to dissipate already too scarce assets and add fuel to unproductive fires.
For 30 years, I have followed a strict no advertising policy (excluding myself from the yellow page lawyer listings, and leaving off profession or phone number references from sponsor ads in school publications). I find most legal ads distasteful at best, and have no desire to kiss the frogs advertising would attract in search of the occasional prince or princess who may chance to contact me in that way. Even this, though, seems now an artificial absolute. This website is my compromise.
About 80% of my work comes from referrals from colleagues, former adversaries, and clients, and from Cumberland and Dauphin County Bar Association referral programs. There are also a certain number of Karma or serendipity cases. Chance encounters are not always a matter of chance. Indeed, with Lincoln, I would have to admit that "there is no room for coincidence in my philosophy."
General practice attorneys in solo or small to mid-sized firms can get bogged down in time consuming litigation which can hinder and jeopardize relations in their regular non-litigation practice. If the client is sent out to a larger firm with a dedicated litigation group, there is always a risk the client will not return. Various attorneys across the Commonwealth are aware that I may be contacted for assistance in such matters.
When I am called in for litigation assistance, local counsel remains as active as local counsel and the client desire; and local counsel may rest assured that I have neither intention nor interest in stealing the client. Local small firm attorneys offer a real value to local businesses, particularly by knowing their communities and being able to guide their clients away from conflicts and serving as an honest broker in conflicts between local parties who will have to continue interaction after the present conflict is resolved. Litigation often requires other skills altogether, though the desire to seek a path of reasonable resolution should never be lost, even in the most acrimonious cases.
I am also called in periodically when the town equivalent of "Mr. Potter" from "It's A Wonderful Life" is spinning webs of injustice, and a local attorney (who has no desire for direct involvement) will call and refer a case to me, secure in the knowledge that their name will never be associated with the matter. Those have been some of my favorite matters. Jimmy Stewart remains my favorite actor and role model to some extent..
Current Rates and Payment Matters:
My current undiscounted rate is $350/hr. I discount 25/hr for cases referred by a colleague or prior client. Veterans and immediate family members receive a $25/hr discount in respect of that service.
I participate in DCBA and CCBA pro bono programs (which have eligibility screening) as well as Veteran service programs (Wills for Heroes, Stand Down, Bar VA Committee referrals) and will occasionally alter terms as my idiosyncratic view of the balance of my stewardship and equity obligations dictate. However, I have found in recent years that there is real truth in the expression "we esteem little, what we receive cheaply." Those who can pay should pay. I have become less flexible on rates partly because those who have benefited from such flexibility have often been slower payers and less grateful at the end of the day.
I note that an hourly rate is only one variable in the cost benefit analysis. "Times What, For What?" remains the key question: how many hours will it take and for what result.
Practice Focuses: While I might accept any matter if it were sufficiently interesting and I felt sufficiently qualified; my practice is concentrated on matters related to: Contract Disputes; Business litigation; Employment law; Defamation claims; Construction litigation; Franchisee representation, Business Ownership "divorces;" Non-Compete Disputes, Non-Profit representation; Civil Appeals; and Ethics and Licensing Board matters. A slowly growing portion of my practice includes complex Family Law and Estate Litigation matters regionally and on a selective basis.
Dispute Resolution. While I enjoy litigation, it is the responsibility of every honorable litigator to seek peace on reasonable and acceptable terms. Where both counsel are reasonable and competent, the risk of not settling should eventually exceed the probable benefit of not settling; at that point, the appropriate settlement ranges will overlap and the interests both parties would then be served by settlement. There are exceptions; but most cases can and should settle once material facts are known and options can be reasonably assessed. It is unwise to settle too early, it is fool-hearty to settle too late. Like most aspects of law, it is more art than science.
The last nickel always costs too much.
Mediation Works. I helped create Bar Association sponsored Alternative Dispute Resolution programs in Montgomery, Dauphin and Cumberland Counties; I teach ADR CLE courses periodically and serve as Mediator/Arbitrator in paid and volunteer settings. I also regularly participate in mediation as an advocate. Even when a case does not settle, mediation can expedite information exchange, target discovery and narrow issues in ways which materially reduced litigation expense. It may not be right for all cases; but it is useful in many, if not most.
Community Activities. All gifts come with responsibilities. Public service is a privilege, as well as an obligation. That "it is better to give than receive" is a statement of fact as well as morality. My CV's summarizes not only legal credentials, but also community associations and involvements. I ask "What Kind of World Do I Want," and then I do my best to "Be the Change I Seek."
Buttons on the left side of the web page link to AWBPC related information, my various blogs and CLE materials and video. The pictures are to put a human face and balance the Oz like accolades. If you cut me I bleed.
Our staff and clients are encouraged to do likewise. My clients often find that participation in Community Activities provides an inoculation against the stress of litigation and a counterbalance to the other demands of life. It is one thing to write a check, another to go to the need and meet it - eye to eye and heart to heart.
Community Involvement is a cheap form of Mental Health Insurance.
The Road to Here:
Not entirely random snippets of a life path headed in a singular direction, to the place I was meant to be, rather than precisely the place I had sought to be, or expected to be. A place I would not change for anything....
AWBPC Page Links - More Detailed information
AWB Blog Links: Another Window Into My World
Sampling of AWB CLE Materials & Video Excerpts
Official AWBPC Client Meeting Scheduling Policy
Law is a profession, one which comes with great power and responsibility.
In this I, strive to preserve the legacy of both my country, and family ....
Many think law is about Justice, to some extent it is. Others think it is about Knowledge, Experience, and Creativity, also true.
Yet still, in the end, it is also about Relationships, and Choices, Interests in addition to Rights; in that respect it is about Grace as well as Justice.
If I have have knowledge, experience and the ability to analyze; but not Grace/Love, I remain but a Sounding Gong or Clashing Symbol....
Law is also about a sense of humor and the ability to draw from the great stories of our shared experience when addressing legal issues, this is a favorite when any attorney or witness asks that I or the factfinder "take on faith" that for which "evidence" is not presented.
If it sounds "Too Good To Be True,"
It almost always Is