Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

Have you ever had the thought—what if the news channels selected a time period in which they completely blocked off all communications surrounding the tragedies the world experienced daily? Would that shift be enough to divert your attention from the toxic negativity to the more productive and rewarding news making a substantial impact upon each of us as individuals and who we are as people in our communities? Think about it. You may be having a perfectly normal day, content with your life as it relates to your inner circle and then you see on the news. Story after story—catastrophic news—a series of unfortunate events. Immediately, you are affected and sometimes you are completely unaware of what that affect has made upon you. Maybe you suddenly feel low. Maybe you aren’t as comfortable going places in public, travelling, or suddenly you aren’t sleeping quite the way you ought to? Feelings that take away from the experiences that allow us to have a more carefree outlook on the world and our personal surroundings, thus changing who we are. Every action has a reaction. I believe we could all benefit from a little more exposure to positivity. Regularly, the news is overtaken by scandals, acts of criminals, terrorists, and it affects all aspects of who we are as human beings. Whether it bring someone’s inner being down or even has a bit more sinister affect encouraging a mentally ill person to be publicized as a copycat criminal. Do we even know who we really are anymore? How long would it take for communities to reap the benefits of the renewed and uplifted individuals if we changed what we were surrounded by for a period of time? A day? A week, month, or year? Sadly, the people out there doing good aren’t getting the recognition they deserve but because they are good, they don’t expect it. I’d like to see that change too. Showing appreciation should be a priority. Now, I am not blaming the media. It’s not their fault. These are the top stories. These are the top stories that draw people in, and they watch. It’s tough to just walk away from a breaking story that gives you a bird’s eye view; promising to see the photos and get the scoop on the latest scandal or crime. People struggle to walk away. Naturally, this has an impact on our everyday lives. Our communities need to turn the tables, setting examples, encouraging the heroes; placing less focus on the darkness that seems to want the spotlight. We need an adjustment. Let’s expose ourselves to more positives, find the silver lining in the clouds that may surround us. Who knows, perhaps it just might wear off on us and we can all be better people as a community perhaps making a difference small or large, who knows, but collectively, we can make a difference as a whole. Afterall, every action has a reaction. It’s your choice. Do you want the good news or the bad news?

One of the most important services a person can provide to his or her community is to serve as a juror. Unfortunately, far too many people are misinformed about jury duty and what it involves, so they view it as a huge inconvenience that is to be avoided at all costs. In this blog entry, I hope to eliminate some of the misconceptions about serving on a jury, so that at least some of the readers may see jury service in a different light. You will first learn of being called for jury duty when you receive a letter in the mail from the Circuit Clerk in the county where you reside. The letter will inform you that you have been called to serve as a juror during a particular term of court, which lasts four months. You will also be given a questionnaire to complete, which is very important. The questionnaire provides information about you to the parties whose case you may be hearing, so it is important for you to carefully and completely answer all of the questions listed. Those questions allow the attorneys to make an informed decision about whether or not you would be a good juror for their particular case. Finally, you will be given instructions about when and where to call to determine if you need to report for jury duty. If you are one of the individuals called for jury duty, you will be asked to report to the county courthouse at 8:30 or 9:00, depending upon the practice of the particular judge presiding over the case. Once you arrive, the judge will give you a brief explanation about what is about to happen. You will take an oath promising to answer questions truthfully, after which the judge will briefly tell you about the pending case and the attorneys handling it. He will then ask you a series of general questions about your familiarity with the case, the parties, or the attorneys representing them. It may turn out that the plaintiff is your neighbor, or the defendant is someone that you have worked with for 20 years. There are all sorts of things that can come out in this first round of questioning, which is simply intended to determine whether or not there is some obvious reason why you should not serve as a juror. Once the judge has finished his questions, the lawyers will likely be given the opportunity to question you further. The questions they ask are usually designed to uncover information that will help the attorneys figure out your feelings on particular issues. For instance, a question I frequently ask of jurors is whether or not they or a member of their family has worked in the insurance industry. If my case is against Liberty Mutual Insurance for failing to properly evaluate and pay a claim, I probably don’t want an employee of State Farm on my jury. I think you get the point here. Depending upon the situation, an attorney may ask the Court to strike a juror “for cause” if that juror answers a question in a way that indicates he or she may be biased against one side or the other. The Court’s ruling will depend upon the specific circumstances of each case. After the attorneys have finished asking their questions, each party will be given an opportunity to eliminate two jurors from the pool. No reason is necessary; sometimes, a lawyer will look at a juror and just get the feeling that he or she isn’t right for the case presented. These are call peremptory strikes, and they are completely within the discretion of the attorney, save for one exception we don’t need to get into here. Finally, we will end up with six jurors and, in cases expected to last several days, one or two alternates. No one knows who the alternates are until all of the evidence has been presented, at which time the judge will excuse the alternates. Frustrating to the alternates, I’m sure, but necessary to make sure all jurors remain focused and attentive. When the case is submitted for consideration, the jurors retire to the jury room, select a foreperson, and begin their deliberations. Sometimes deliberation takes an hour; sometimes it takes several days. In the end, the verdict must be unanimous. The verdict is presented to the judge, and the trial phase of the case is concluded. The American system of jurisprudence, with its provision for trial by a jury of one’s peers, is unique in the world. It separates us from the other nations who envy our prosperity and our freedom. Being a part of such a unique and valuable system is an opportunity we should all value.

Recently, in the case of Hassel v Franzi, the Pennsylvania Superior Court addressed evidentiary issues in a medical negligence case involving learned treatises, notice, cumulative testimony and relevancy. Mary Hassel, a 65-year-old woman, presented to Dr. Arnold, an orthopedic surgeon, with complaints of worsening left knee pain. A MRI showed a fracture of Mrs. Hassel's femur. Dr. Arnold determined that surgery was not necessary and recommended immobilizing Mrs. Hassel's left leg to facilitate healing. Blood clot prevention, including the anti-coagulant medication, Coumadin, was discussed with Mrs. Hassel. Dr. Arnold told Mrs. Hassel that he would contact her primary care physician, Dr. Franzi, to discuss blood clot prevention treatment. Dr. Arnold and Dr. Franzi agreed that Dr. Franzi would select the course of treatment for Mrs. Hassel based on his existing relationship with her and extensive knowledge about her medical history. Dr. Franzi contacted Mrs. Hassel that same day and advised her to take 325 milligrams of aspirin, an anti-platelet medication, twice per day to prevent blood clots. Dr. Franzi discussed Coumadin and aspirin as options to prevent blood clots but did not discuss other drugs. Almost three (3) weeks later, Ms. Hassel was experiencing nausea, dry heaves, and diarrhea. At 5:54 p.m. Mr. Hassel called Dr. Franzi's office to report her symptoms and left a message with a staff member. He expected to be called back but wasn't. Mrs. Hassel's symptoms persisted and worsened and Mr. Hassel placed another call to Dr. Franzi's office. Once again, Mr. Hassel's call was not returned. Hours later, Mrs. Hassel began to experience shortness of breath and Mr. Hassel placed a call to 911 at 1:42 a.m. Paramedics arrived to transport Mrs. Hassel to the hospital and she died shortly thereafter. Mrs. Hassel's cause of death was cardiac arrest caused by the DVT in her left leg and subsequent pulmonary embolism that developed. Plaintiff filed negligence claims for the wrongful death of his wife alleging that the doctors were negligent in failing to prescribe an anti-coagulant medication as prevention for deep vein thrombosis, and for Dr. Franzi’s failure to return Mr. Hassel’s calls on the day preceding Ms. Hassel’s death. Ultimately, the case went to trial, and the jury found that Dr. Franzi's treatment fell below the applicable standard of care, but that his negligence was not a factual cause of any harm to Ms. Hassel and awarded no damages. The jury also found that Dr. Arnold's treatment did not fall below the applicable standard of care and no damages were awarded. Learned Treatises Hassel argued that the trial court committed multiple errors in allowing defense counsel to utilize medical literature ("Learned Treatises") during direct examination of their own defense experts to improperly bolster their opinions; and, to publish (i.e. display the documents on a screen projected for the jury to see) multiple medical literature articles during cross-examination of Plaintiff's experts. Pennsylvania courts allow an expert witness the limited use of textual material on direct examination to explain the basis for that expert's reasoning. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000). On cross-examination, an expert witness may be questioned on the contents of any publication on which he or she relied in forming an opinion, or one in the field that he or she considers generally reliable; the evidence is admissible to challenge the witness's credibility, but the writing cannot be admitted for the truth of the matter asserted. Majdic v. Cincinatti Mach. Co., 537 A.2d 334, 339 (Pa.Super. 1988). Excerpts from a publication which are read into evidence for the purpose of proving the truth of the statements contained therein constitute hearsay and, therefore, are inadmissible. This fact is not changed merely because the document is read into evidence by the witness instead of being received as an exhibit for inspection by the jury. It is the purpose for which the information is offered, not the manner in which is introduced, which makes it objectionable. Id. at 340. In Aldridge, the Pennsylvania Supreme Court held that although some published materials could be considered hearsay, an expert witness may nonetheless rely upon them in the formation of his or her opinion, and it would be unreasonable to restrain an expert witness entirely from any use of a learned treatise. Id. at 333-34, 750 A.2d at 297-98. However, the Supreme Court did direct that trial courts should exercise caution and issue limiting instructions when allowing the use of learned treatises to ensure that the publications themselves did not become the focus of the examination and supersede the expert's own testimony. Id. Thus, upon a party's request, the trial court shall issue appropriate limiting instructions to ensure that the inadmissible hearsay does not come in for substantive purposes and that the treatise does not become the focus of cross. Aldridge, 750 A.2d at 297 (citing Pa.R.E. 105 (“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.”)). It remains to be determined, however, “whether the appellants are entitled to a new trial, as an erroneous evidentiary ruling will generally require reversal only if it caused prejudice.” Aldridge, 750 A.2d at 298 (holding that erroneous admission of hearsay did not prejudice results of trial so as to require reversal). A trial court's failure to limit the use of treatises effectively may constitute grounds for reversal only if the issue was properly preserved at all stages of the proceedings and prejudice can be established. See Klein, 85 A.3d at 505 (Pa. Super. 2014) ( Citing Aldridge, 750 A.2d at 298, Crespo v. Hughes, 167 A.3d 168, 185–87 (Pa.Super. 2017). Here, the PA Superior Court determined that Hassel failed to identify in his Concise Statement where in the record these challenges were preserved for appeal. Moreover, the Court was unable to ascertain a place where Hassel requested that the trial court provide the jury with a limiting instruction. A concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all. Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super. 2000). As a result, the Court determined that Hassel had waived this issue for appeal. See Crespo, 167 A.3d at 187 (stating trial court’s alleged failure to limit properly the use of learned treatises constitutes grounds for a new trial only where a party specifically objects to the impermissible reading medical literature and requests a specific limiting instruction pertaining to the jury’s consideration of the literature). Notice Experts may testify at trial concerning matters which are within the fair scope of a pretrial report. The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert's proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report. Walsh v. Kubiak, 661 A.2d 416, 419-20 (Pa.Super. 1995). The fair scope rule is addressed in Pa.R.C.P. 4003.5(c) and provides that an expert witness may not testify on direct examination concerning matters which are either inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or, as here, included in a separate report. In Wilkes–Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–Barre, Inc., 502 A.2d 210 (Pa.Super. 1985), this Court explained that: t is impossible to formulate a hard and fast rule for determining when a particular expert's testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary's request, “the substance of the facts and opinions to which the expert is expected to testify” is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa. Super. 194, 481 A.2d 319 (1984) (“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise”); Martin v. Johns– Manville Corp., 322 Pa. Super. 348, 469 A.2d 655 (1983) (“e have found experts' reports to be adequate ... when the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness.”). In other words, in deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Id. at 212–13. Here, Hassel maintained that he objected to defense expert’s testimony regarding the placement of a filter to prevent a clot, which was offered in response to Hassel’s expert testimony, on the basis that the defendant’s expert’s report did not reference filters. However, the Court found that Hassel did not set forth a specific objection in this regard; and, therefore, this claim was waived in accordance with Pa. R.A.P. 302(a); Jones v. Ott, 191 A.3d 782, 787 (2018) (stating “In order to preserve an issue for appellate review, a litigant must place a timely, specific objection on the record.” Corroborative v. Cumulative Evidence Hassel argued that the trial court erred in allowing the defendants to introduce “excessively duplicative” expert testimony despite its pretrial order entered November 29, 2017, in response to Dr. Arnold’s Motion in Limine filed on November 15, 2017, precluding Hassel from offering cumulative testimony at trial. Hassel stated that in reliance upon this directive, he did not ask his expert to opine as to standard of care. Hassel argued the direct testimony of the defendant’s expert, a general clinical cardiovascular specialist, was unnecessary as the instant matter did not involve cardiology issues and other defense experts testified as to standard of care. Hassel also stated that this, along with proffered testimony of an expert internist qualified to discuss primary care medicine, on the standard of care constituted excessively cumulative and severely prejudicial testimony. Here, the Court noted that there is a subtle difference between evidence that is ‘corroborative’ and evidence that is ‘cumulative.’ In the most general sense, corroborative evidence is ‘evidence that differs from but strengthens or confirms what other evidence shows,’ while cumulative evidence is ‘additional evidence that supports a fact established by the existing evidence.’ Black's Law Dictionary. 674, 675 (10th ed. 2014).” Commonwealth v. Small, 189 A.3d 961, 972 (2018). Ultimately, the Superior Court concluded that the trial court did not abuse its discretion in finding that the challenged testimony was corroborative rather than cumulative and, therefore, proper under the terms of its pre-trial orders because each of defendant’s experts opined form the perspective of his specialty, and approached the standard of care from different clinical perspectives. Each of the experts reached the same conclusion, that aspirin was an appropriate treatment for Mrs. Hassel, and their testimony is consistent with what the Superior Court determined in Klein v. Aronchick to be corroborative testimony, not cumulative testimony. Relevancy Finally, Hassel alleged that the trial court erred in failing to permit him to cross-examine the defendant regarding his prior involvement in medical malpractice cases, and to cross-examine a defense expert regarding his relationship with defendant’s counsel. In Flenke v. Huntington, 111 A.3d 1197 (Pa.Super. 2015) the Court held that the impeachment of expert witnesses by demonstrating their partiality is permitted under Pennsylvania law. In Pennsylvania, evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.” Pa.R.E. 401(a). “All relevant evidence is admissible, except as otherwise provided by law.” Pa.R.E. 402. Although relevant, evidence may be excluded “if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. Moreover, he scope of cross-examination is within the sound discretion of the trial court, and appellate courts will not reverse the trial court's exercise of discretion in absence of an abuse of that discretion. Here, the Superior Court noted that every circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge is a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination. Specifically regarding medical experts, the scope of cross-examination involving a medical expert includes reports or records which have not been admitted into evidence but which tend to refute that expert's assertion. Jacobs v. Chatwani, 922 A.2d 950 (Pa.Super. 2007). In Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, (Pa.Super. 2002), the Superior Court acknowledged that “an expert witness can be cross-examined as to any facts that tend to show partiality on the part of the expert.” Nevertheless, the Court determined that Hassel failed to establish that any error with regard to these evidentiary rulings resulted in prejudice to him which would warrant a new trial. See Yacoub, 805 A.2d at 586 (“f the basis of the request for a new trial is the trial court's rulings on evidence, then such rulings must be shown to have been not only erroneous but also harmful to the complaining party.”). Accordingly, the Superior Court affirmed the decision of the trial court.

As most people are aware, Pennsylvania law requires all drivers to carry a minimum of $15,000 in liability insurance. However, the sad reality is that there are many people on the road who operate their vehicles without the required insurance coverage. A pedestrian or passenger of a vehicle who are injured by an uninsured driver, and who do not own a vehicle and therefore do not have access to uninsured motorist coverage through their own insurance policy, may qualify for benefits under Pennsylvania’s Assigned Claims Plan. Under Pennsylvania’s Assigned Claims Plan, an eligible claimant (injured person) may recover medical benefits up to a maximum of $5,000. Eligible claimants may also recover for losses or damages suffered as a result of the injury up to $ 15,000 per person and $ 30,000 in the aggregate. However, the amount of medical benefits recovered or recoverable up to $5,000 are set off against that amount. Unfortunately, no income loss benefits or accidental death benefits are payable under the Plan. In order to qualify for benefits under the Assigned Claims Plan the claimant must satisfy the specific requirements set forth in 75 Pa.C.S.A. § 1752: 1.    You are a resident of Pennsylvania; 2.    You have been injured in a vehicle accident that occurred in Pennsylvania; 3.    You are not the owner of a vehicle required to be registered in Pennsylvania; 4.    You are not the operator/occupant of a vehicle owned by the Federal Government, any of its organizations, authorities, or departments; 5.    You are not the operator/occupant of a vehicle owned by a self-insurer or any individual or entity exempt from liability for benefits; 6.    You are not permitted to receive first party benefits under section 1711 (required benefits) or 1712 (availability of benefits) applicable to the injury(ies) resulting from the vehicle accident; 7.    You are not the operator/occupant of a recreational vehicle unintended for highway use, motorcycle, motor-driven cycle, motorized pedal cycle, or similar vehicle that is to be registered under this title.   One of our personal injury attorneys can help determine whether you qualify for coverage. In addition, one of our lawyers can also determine whether there exist grounds which would make you ineligible for benefits. A potential claimant is ineligible to recover benefits if any of the following contributed to your injuries: 1.    The injury occurred as a result of you intentionally injuring yourself or attempting to intentionally injure yourself or another; 2.    The injury occurred while engaged in a felony; 3.    The injury occurred while seeking to elude lawful apprehension or arrest by law enforcement; 4.    The injury occurred while knowingly converting a vehicle. In addition, in order to qualify for benefits, an eligible claimant must bring a claim within four years from the date of the accident. 75 Pa.C.S. § 1757(a). However, if the eligible claimant is a minor, an action must be commenced within four years of turning 18 years of age. 75 Pa.C.S. § 1757(b). If you or someone you love has been injured in an uninsured motorist, you should speak with a lawyer about making a claim.

If you are injured to an extent that it prevents you from being able to keep working, what are your economic damages? As part of any personal injury claim, you are entitled to recover lost wages. If you are employed by another entity, the calculation to figure out your lost wages are easy; you simply use the salary or hourly rate and calculate what was lost over the time you were unable to work in the past and/or into the future. However, how do you calculate the lost earnings for a self-employed individual when your earnings are not specifically comparable to an employed individual? What are your rights if you have not returned to work and will be unable to work for a period time into the future? It is not uncommon for the self-employed to have unique accounting records, so how do you calculate your wage losses if you are self-employed? The case Serhan v. Besteder, 500 A.2d 130 (Superior Crt.1985) holds that income tax records for a sole proprietor can be introduced as evidence to show lost past earnings, though for a sole proprietor courts in Pennsylvania treat them as lost profits of a business, and look to the decline in earnings of the business the plaintiff owned as a result of the injury. Serhanmay also allow the use of comparing the plaintiff’s sole proprietorship to doing identical work at a larger company, in order to show prior lost earnings. In the event that it does not, suggested jury instructions and King v. Pulaskioffer means of proving both prior lost wages as a measure of damages and also suggest how to prove and introduce evidence of impaired future income. In Serhan v. Besteder, the Superior Court held that using federal income tax records, and especially Schedule C, could be introduced by a sole proprietor or small business owner whose income was primarily produced by the “personal services and attention of the owner,” and that a sole proprietor plaintiff could therefor use “the net profits of the business” because they “afford a reliable measure of the owner’s earnings.” Id.at 133. The Superior Court noted that sole proprietors whose business essentially rely and profit from their work provide an acknowledged exception to the general rule against using business earnings to provide evidence of a plaintiff’s earnings power. Id.(citing Bell v. Yellow Cab Co., 160A.2d 437, 441 (1960)). The Superior Court noted that “Virtually the entire business was based on her labors,” Id.at 134. As a result, the Superior Court held that the tax records for her business were admissible and that the net profits of the business could be used to show prior lost earnings. Id. at 135. Additionally, the Superior Court allowed the use of Ms. Serhan’s tax returns for the years prior to the accident before she had her own business and worked as an interior decorator for a department store as evidence of earning capacity. Id. The Superior Court’s holding that evidence of future earnings capacity can be introduced through tax records or other documentation may allow you to make reference to the income of someone doing your job if you were employed by a larger corporation. A more recent case, King v. Pulaski, in reviewing methods of proving future lost earnings potential, pointed out that proving lost earnings potential does not need to be exact, noting an expert’s broad ability to testify as to the lost potential for the plaintiff’s earnings and that evidence of significant impairment or permanent injury was sufficient to show loss of earning power. 700 A.2d 1200, 1205 (1998). In Serhanthe Superior Court noted that “with respect to impairment of earning capacity, the law requires only proof that the injured person’s economic horizons have been shortened as a result of the tortfeasor’s negligence.” 500 A.2d at 134 (citing Holton v. Gibson, 166 A.2d 4 (1960), Lewis v. Pruitt, 487 A.2d 16 (1985), and Janson v. Hughes, 455 A.2d 670 (1982)). Finally, comments to the suggested standard civil jury instructions for Pennsylvania provide that for proving past loss of wages or income, “testimony by the plaintiff of his loss of wages has been held sufficient proof to permit a judge to instruct on past lost earnings” (interpreted as lost profits for a sole proprietor). PA-JICV 7.110, Pa. SSJI (Civ), § 7.110 (2013). The suggested jury instruction also indicates that for computing lost wages, income, or profits, a plaintiff’s “opportunities for employment are relevant in determining the amount . . . could have earned.” Id. Additionally, for reduction of future earnings capacity, the suggested jury instructions charge that “the plaintiff is entitled to be compensated for any loss or reduction of future earning capacity that . . . will suffer as a result of a decrease in or loss of future productivity.” PA-JICIV 7.120, Pa. SSJI (Civ), § 7.120 (2013).

I am fortunate that I get to speak with a lot of people about their oil and gas issues. Lots of people have questions about their leases, their royalties, other payments, pipelines, right of ways and even just the loud noise that might be coming from the operations next door. Time and again as I speak to potential new clients, we need them to gather their documents together for review. If you have questions about your lease, your right of way, your payments or the types of operations that might be going on, your first step before calling an attorney should be to make sure that you have all of your documents together. The relationship that you have with the gas company is mainly controlled by the language of the written agreements that you entered into with the company. The “law” -so to speak -may provide some details, but by in large the words of the agreement that you have control. The language of the agreement may even exclude or void some provisions of what you might consider the law to be. Courts in all states respect the freedom to contract. If you have a deal with someone the courts will try to enforce that deal to the greatest extent possible. With that being said, there are still some legal rules that can help landowners when faced with confusing or misleading contract language. For example, if the gas company prepared the contract and there is ambiguity- or confusion- as to what the language of the contract means, then often times a court is required to read the contract in the light most favorable to person who did not write the contract. Additionally, sometimes the gas companies don’t seem to understand or remember what their contract requires of them. I have reviewed several agreements where the companies have shot themselves in the foot by not following their own contract language. Oil and gas leases, pipeline agreements and right of way documents are often confusing. It is vitally important, however, that you understand the general meaning of those documents to know if you are, in fact, being treated appropriately. If you have questions about any oil and gas related issue your first step should be gather your papers. After you gather all of the relevant papers you are in a good position to call an attorney who can look at the documents and determine if they can help you.

I’m confident that most people who regularly read our blogs have, at one time or another, seen one of our attorneys refer to a “deposition”. It occurs to me that while many of you may be familiar with the term, you may not be quite as familiar with what it actually involves. In the few paragraphs that follow, I’ll try to give you a basic understanding of what happens in a deposition, and why a deposition is taken in the first place. A deposition is started when an attorney for one of the parties to a lawsuit files a Notice with the Court, indicating that he/she wants to depose a certain party or witness. In most cases, the attorneys will work together to agree upon a date for the deposition that causes the least scheduling problems for all concerned. When the date and location of the deposition have been agreed upon, everyone shows up as provided for in the Notice. The attorneys for each party to the suit will be present, and sometimes (though not very often) the parties themselves will make an appearance. There will also be a court reporter present, who is responsible for taking down every single word that is uttered by anyone in the room. (I am always amazed at the ability of a court reporter to accurately take down what is being said, when often times 2 or even 3 people are talking at the same time.) Finally, in many cases there will also be a videographer in attendance, who is actually digitally recording the entire process. If that happens, the camera is always focused on the witness, and never on anyone else in the room. Everyone else who is present will have a microphone to make sure that the audio is captured as well. Once everyone gets settled in and we are confident that all of the equipment is working as it should be, the court reporter will administer the oath to the witness, and the deposition begins. The attorney who schedules the deposition will start the process, usually beginning by informing the witness about what will be happening in the hope of making him/her relax a bit. The attorney then starts asking questions, seeking to develop whatever information he was seeking when he scheduled the deposition. There are very, very few limits on what an attorney is permitted to ask a witness in deposition, and for that reason it’s tough to predict how long they may last. I’ve seen depositions last 10 minutes, and I’ve seen them last 10 hours or more. Everything depends upon the complexity of the case, the cooperation of the witness, and the experience of the attorney doing the questioning. So, what is the point of all of this? I always tell clients that there are three reasons that depositions are taken. First, the lawyer wants to “size up” the witness. He wants to see what kind of an impression the witness will make. Is he a nice guy that a jury will like? Or is he an arrogant jerk that will cause a jury to turn against him? Second, the lawyer wants to find out everything that witness knows about the issues at hand. The only way to do that is to question the witness at length, sometimes asking the same question in 2 or 3 different ways, so that you can be sure to uncover every last bit of information. Finally, the attorney wants to “lock in” the witness’ testimony for the record. That way, if the case goes to trial and the witness testifies inconsistently with the testimony he gave in his deposition, the attorney can use the deposition transcript to make the witness look bad. The questioning would go something like this: Q. “Mr. Witness, do you recall when I took your deposition back in August of last year?” A. “Yes, I do.” Q. “And do you remember when I asked how familiar you were with the scene of the accident, and your answer was ‘not very’? If you need to check, that question appears at page 17 of your deposition transcript, at line 20.” A. “Yes, I see it.” Q. “And you just told this jury that before this accident, you drove by the scene at least two times every day! In August you said you were not familiar with the scene, and now you’re telling us that you drove it daily! So, which answer are we to believe?” I think you get the point. Deposition testimony can be a powerful tool to make a witness appear to have a faulty memory at best, or to be a liar at worst. Depositions are a routine part of the litigation process. Our attorneys here at Bordas & Bordas have handled literally thousands of them throughout our respective careers. We will make sure that you are properly prepared and properly protected throughout the entire process.

With summer coming quickly upon us, I see so many people posting on social media the types of diets and fitness plans they are trying out in order to lose weight or tone up. However, just as important as our physical bodies is our mental health. Nurturing our mental health may be even more important due to the fact that our brains are the main hub of what makes us tick. Taking steps to sustain our mental health and managing stress in our lives can benefit us greatly by avoiding potentially dangerous physical outcomes. The main goal of managing stress is to practice techniques to trigger relaxation responses. These techniques include practicing meditation, breathing awareness, moderate exercise, taking time for a favorite hobby and of course, getting a good night’s sleep. Even a change in your surroundings such as cleaning, freshening up your living space, rearranging furniture or buying new throw pillows can help boost your mood. Understanding where your stress originates can help you decide your course of action as well. Issues related to mental health can impact people in different ways and there are many avenues to get the support you need.

With the ending of the month of May, and the beginning of June upon us, it is clear that we have entered into the anticipated time frame known as “Wedding Season.” For those of you who will be getting married this summer or next summer, one issue that may be on your mind is that of obtaining insurance coverage for your big day. You may think to yourself- why do I need event insurance for my wedding? Shouldn’t that be the wedding venue’s responsibility? While these thoughts are common- you should not push them aside. Speak with the wedding coordinator at your wedding venue to determine if insurance coverage is in place for your wedding in the event there is property damage or bodily injury. You should inquire to determine if you need to obtain “host liquor liability insurance” which covers alcohol-related incidents that you may be responsible for. As you can tell, there are several different types of wedding insurance coverage that you could obtain and may be responsible for acquiring based on your venue. As we all know – weddings are a time of happiness and excitement, however, it’s important not to forget that accidents and injuries do happen at weddings and wedding receptions, especially if alcohol is involved. You don’t want to be left on the hook for such incidents simply because you forgot to purchase event insurance. While wedding or event insurance may seem like an uncommon or odd type of insurance to purchase, it is a valid form of insurance and thus, should any claims need to be made under your policy, the insurance company continues to have a duty to handle your claim in good faith.

Memorial Day has arrived and the small town I grew up and still reside will be holding the usual events, including the Memorial Day parade. As a child, I remember walking from our home to the main street, carrying a bag to fill up with the candy that would be thrown from the participants of the parade. However, what stood out to me as a child were the little paper poppies that were given out. My mom made sure to hand over a donation and we received our poppies. I was a child and thought they were so pretty, but never asked what the poppy symbolized and why we received them on Memorial Day. As I grew older, I found out why. During WWI, a Canadian soldier named John McCrae, was serving in Belgium. He was in an area where the landscape was destroyed due to the war when he noticed a place on the battlefield near trenches where the soldiers had buried their fallen brothers. On that site were thousands of little red flowers, the poppies, which had bloomed. He was so overcome with emotion by this sight of the poppies that he composed a poem “In Flanders Field”. The poem was written from the perspective of the dead on the battlefield. Three years later, a YMCA Military volunteer, Moina Michael, read the poem which was published in the Ladies Home Journal magazine. She described the experience as “deeply spiritual” and made a vow to always keep the faith and from that point forward wear a red poppy as a sign of remembrance to those who lost their lives. In 1920, Moina met with a delegate to the Department of the American Legion who promised to present her campaign to its convention. They were so interested and moved by the story that they agreed to endorse the movement to have the Poppy adopted by the National American Legion. Today, we still celebrate and honor those who lost their lives in the line of duty by wearing our poppies on Memorial Day.

My family and I spent the last weekend cleaning off the porch, getting the patio furniture out and planting flowers. Spring is such a wonderful time. The weather is getting warmer, the flowers are blooming, and you just want to be outside. As soon as it starts warming up, my family loves to grill and eat outside. Also, because they love to hunt, we often grill wild game, so I thought I would share one of our favorite recipes for quail, pheasants, duck, etc…. (see below) that we will be making this weekend. Like a lot of people, we will be grilling out this Memorial Weekend and spending time as a family. However, we will also remember and give thanks to all men and women who served in our Armed Forces and sacrificed their lives to protect our freedoms. So, however, you choose to celebrate the long weekend, just remember to take some time to reflect on the true meaning of Memorial Day. Recipe for Bacon-Wrapped Quail with Bourbon-Pepper Jelly Glazed Recipe courtesy of Emeril Lagasse Ingredients: 8 quail, about 5 1/2 ounces each, dressed 1 teaspoon salt 1 teaspoon freshly ground black pepper 8 strips thick-cut bacon 1/2 cup pepper jelly 3 tablespoons bourbon 1/2 teaspoon Worcestershire sauce Method: Season each quail with 1/8 teaspoon of the salt and 1/8 teaspoon of the pepper. Wrap the bacon around the quail and secure with a toothpick. Preheat a grill to medium-low. In a bowl whisk the pepper jelly, bourbon, and Worcestershire sauce until smooth. Place the bacon-wrapped quail on the grill and cook, turning frequently, for 10 to 12 minutes, or until bacon is beginning to caramelize in places and the quail have grill marks on all sides. Brush the quail with the glaze and continue turning, glazing, and cooking until birds are nicely glazed and grilled on all sides and the flesh is just cooked through, about 10 minutes longer. Set aside to rest briefly before serving 2 quail per person.

As Memorial Day weekend quickly approaches, I am reminded of some of the ways my family celebrated the holiday weekend when I was growing up. Most of the time we would go camping for the long weekend and have a family BBQ at the campground. There were a few Memorial Day weekends I remember traveling with my family to New Hampshire to visit the gravesites of loved ones who had passed and plant flowers for them. Many families celebrate Memorial Day weekend in honoring the service men and women who fought for our freedom who are no longer with us today. My grandfather was a veteran so when we would visit his grave on Memorial Day, we always placed a flag at his grave as well. Memorial Day was originally known as Decoration Day and originated in the years following the Civil War. In the late 1860’s Americans begun holding springtime tributes to the fallen soldiers. They would decorate their graves with flowers and recite prayers. In the year of 1966 the federal government declared Waterloo, New York the official birthplace of Memorial Day. Waterloo was chosen because it hosted an annual community-wide event where the local businesses closed their shops and residents decorated the graves of soldiers with flowers and flags. Much like the tradition that is carried out today. So, however you choose to celebrate Memorial Day, I hope it is filled with great memories of loved ones.