Tag Archives: Trial Lawyer

Where to File a Lawsuit? Proper Venue in Pennsylvania

June 14, 2017 goslee10 Leave a comment

City Hall

Where to File a Lawsuit in Pennsylvania

Where to file a lawsuit? It is one of the first questions a trial attorney asks when representing a new client. And it is one of the most important questions. The county in which a lawsuit is brought can have a major impact on both the value of the claim and how quickly it can be resolved. For instance, some counties are known for higher verdicts, which can drive up the settlement value of a claim. Also, civil litigation moves at a different pace depending on which county you find yourself in. Some counties, like Philadelphia, move cases quickly and a plaintiff usually gets a trial date within 1 or 2 years of filing suit. But, in other counties, it can be 4 or 5 years before there is a trial date and thus take half a decade (or longer) before a claim can be resolved. Because the venue of litigation is so important and directly impacts the value of a claim and how quickly it can be resolved, it is important for trial lawyers to identify the best viable venue before filing a Complaint.

Naturally, corporate defendants have the opposite incentive as plaintiffs. If possible, corporate defendants want to make sure a lawsuit is filed in a jurisdiction known for small jury verdicts and a slow docket. Because venue is so important, the Pennsylvania Rules of Civil Procedure set out specific rules controlling where a corporate defendant can be sued. Under Rule 2179, a corporation can be sued:

in any county where its principal place of business is located;
in any “county where it regularly conducts business”; or
in the county where the accident occurred.

In cases where a plaintiff files suit in the defendant’s home county, or where the accident or incident giving rise to the claim took place, there is nothing really to fight over. In these cases, venue is proper and the corporate defendant cannot object. The area of contention is when a plaintiff files a claim in a county where the incident didn’t happen and where the defendant does not have a principal place of business, but where the plaintiff alleges that the defendant “regularly conducts business.”

“Regularly Conducting Business”

What does it mean to “regularly conduct business” in a county? Over the years courts in Pennsylvania have issued rulings clarifying what that means and increasing the burden on a plaintiff to prove that a defendant “regularly conducts business” in the chosen jurisdiction. To this end, the Pennsylvania Superior Court has adopted a two prong “Quality and Quantity” test. In determining whether a corporate defendant “regularly conducts business” in a specific county, courts must consider both the quantity or business conducted in the county, and the quality of the defendants contacts with the forum. The Superior Court explained this test in Zampana-Barry v. Donaghue:

In determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis. A business entity must perform acts in a county of sufficient quality and quantity before venue in that county will be established. Quality of acts will be found if an entity performs acts in a county that directly further or are essential to the entity’s business objective; incidental acts in the county are not sufficient to meet the quality aspect of the test. Acts that aid a main purpose are collateral and incidental while those necessary to an entity’s existence are direct.

An issue that has arisen over the years involves cases where a defendant “solicits” business in a specific county, but does not actually conduct business “directly” in that county. This sort of “indirect” contact often becomes an issue where a car manufacturer is a defendant. Car manufacturers, with limited exceptions, do not sell automobiles directly to customers. Rather, they sell cars to consumers through independent automobile dealerships. And although these manufactures extensively advertise and get the economic benefit of sales to customers in various counties, they have successfully managed to get cases removed from the plaintiff’s chosen forum because they do not have “direct” contact with that county. To this end, the Pennsylvania Supreme Court has specifically ruled that “mere solicitation” in a particular county does not amount to conducting business. Purcell v, Bryn Mawr Hospital.

Faust v. BMW

Recently, the Superior Court of Pennsylvania had an opportunity to consider proper venue in a case involving a car manufacturer. In Faust v. Bayerische Werke AG and BMW of North America, the plaintiff brought a claim for a faulty airbag against BMW in Philadelphia. BMW filed a preliminary objection arguing that venue in Philadelphia was not proper because, under existing Pennsylvania law, it does not regularly conduct business in the City. The plaintiff responded with record evidence showing that BMW regularly advertises its cars in Philadelphia and, through independent licensed dealerships, sells and leases a significant amount of cars to Philadelphia citizens.

Despite an obvious argument as to fairness (i.e. BMW makes a lot of money selling and leasing cars to Philadelphia citizens, and intentionally markets in Philadelphia, why can’t they be sued there?), 2 of the 3 judges on the appellate panel upheld the trial court’s ruling transferring the case to Lancaster County. The majority opinion cited BMW’s primary business purpose as follows: “to sell or lease vehicles to individual consumers, which is facilitated by a national distribution network of authorized, affiliated, and independently-owned BMW dealership.” According to the majority, because BMW does not “directly” sell or lease cars to Philadelphia residents, but instead does so through independent dealerships, it cannot be said that it conducts business in Philadelphia. Further, the majority held that although BMW regularly markets in Philadelphia, that sort of conduct is mere “solicitation” insufficient to allow for proper venue.

Time to Reconsider the Law?

The majority opinion in Faust is not wrong from a legal perspective. The majority followed prior precedent set by the Supreme Court. But it is unfortunate because it is expanding a legal rule that is unprincipled and at odds with the realities of modern economics. BMW makes a tremendous amount of money from customers in Philadelphia. Why should it matter if that money comes directly from Philadelphia citizens via direct sales, or passes through a dealership acting as a middle man? If the company is going to receive the bottom line economic benefit of doing business with Philadelphians, and intentionally market its goods in Philadelphia, why is it unfair to hold the company to account in Philadelphia?

James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

Hospital Injuries, Medical Malpractice

Medical Negligence, MCARE Act and Future Medical Expenses in Pennsylvania

May 5, 2017 goslee10 1 Comment

Credit: Darastar, Everystockphoto.com

Back in March 2002, Pennsylvania joined a host of other states in passing legislation aimed at insulating medical providers from liability for their negligence. Rather than accepting accountability for needless injuries caused by carelessness, physicians and large medical providers successfully lobbied to have special laws passed. Laws intended to make it more difficult for injured patients to receive compensation. Or stated another way, special laws that would make it easier for medical providers to get off the hook for their misconduct.
Citing dubious studies suggesting trial lawyers were responsible for escalating medical insurance premiums in the State (as opposed to formation and consolidation of giant health networks that placed patient care a distant second to growth and profitability), Pennsylvania passed the Medical Care Availability and Reduction of Error Act (“MCARE”). MCARE, despite its pretentious title, was a clumsily drafted tort reform act.
Among the various roadblocks to seeking justice erected by the MCARE Act was a provision that arguably makes it less profitable for trial lawyers to represent people injured by medical negligence.
Virtually all lawyers representing injured clients do so on a contingency basis. Most injured clients are unable to pay a lawyer on an hourly basis, or front the costs of litigation, which can easily run into the hundreds of thousands of dollars. Contingency fee agreements provide a solution. Clients pay nothing, no fees, no costs unless there is a recovery. If litigation does result in a successful recovery, the attorney gets an agreed upon percentage of the net recovery, normally one-third.
In medical malpractice cases, as in most personal injury cases, plaintiffs can recover (among other things) the cost of future medical expenses. Historically, juries would award future medical expenses in a lump sum amount. In other words, if a jury found a defendant negligent, it would be instructed to: (1) determine how long they thought a plaintiff would live; (2) the amount of medical expenses the injured plaintiff would incur per year; and (3) multiply those two numbers and award that amount to the plaintiff in a lump sum.
Defendants often objected to this method of calculation with a credible argument. If a jury awarded a plaintiff a specific sum of money for yearly medical expenses assuming the plaintiff would live another 10 years, but the plaintiff only ended up living 2 more years, why should they have to pay the entire amount?
The MCARE Act changed this paradigm by prohibiting juries from awarding future medical costs in a lump sum. Instead, each verdict sheet should contain a specific amount of future medical expenses, itemized per year (i.e., 2018: $100,000; 2019: $102,000). The MCARE Act also specifies that a plaintiff is only entitled to future medical awards if they are alive. So if a jury awarded a plaintiff future medical awards from 2017 to 2021, and the plaintiff died in 2018, he would not be permitted to receive the amounts awarded for 2019-2021.
But the MCARE Act threw in one more twist. Instead of a plaintiff lawyer receiving a previously agreed percentage fee for the future medical component of an award, the ACT operated to reduce the fee of the lawyer. Under the MCARE Act, future medical expenses awarded by the jury need to be reduced to present value for purposes of calculating attorney fees. So, using our previous example, if a jury awarded $102,000 for future medical expenses in 2019, that amount needs to be reduced to 2017 dollars (which will be something less than $102,000), and the lawyer will receive only a percentage of that lesser amount.
But the language of the MCARE Act is so unclear, for years defense lawyers have been arguing (frivolously) that the entire award should be reduced to present value (not just the amount awarded in attorneys fees). The upshot of this argument is that a medical defendant found liable for future medical expenses years into the future should only have to pay the present value of that award.
With respect to future medical costs, the MCARE Act states:
(b) Future Damages
(1) Except as set forth in paragraph (8), future damages for medical and other related expenses shall be paid as periodic payments after the proportionate share of counsel fees and costs based upon the present value of future damages awarded pursuant to this subsection. 40 P.S. §1303.509.
Now admittedly, this provision is very poorly written. And defense counsel have seized upon this poor draftsmanship to argue that juries need to reduce the amount of future medical awards to present value. The problem with this argument is that it is inconsistent with the purpose of the MCARE Act and really doesn’t make any sense.
Contrary to the defense bar’s arguments, the MCARE Act does not require reducing the future medical costs to present value before submitting them to a jury. In fact it requires just the opposite. Future medical costs are only reduced to present value after a verdict in order to award attorney’s fees. See Pa. SSJI (Civ.) § 14.150 (commentary).
This result is also compelled by logic. One of the benefits conferred by the MCARE Act to medical providers is that an award of future medical damages is paid out in yearly increments and only if the plaintiff is still living. Thus, considering the yearly amounts awarded by the jury are only paid in the future and only if the plaintiff is living, it would make no sense for the jury to reduce its award to present value before entering the verdict.
Judge Rambo reached this exact conclusion in a case of first impression in the Middle District of Pennsylvania in 2014. See Late v. U.S., No. 13-0756, 2014 U.S. Dist. LEXIS 112999, at *5 (M.D. Pa. Aug. 14, 2014). Two years later in Shiflett v. Lehigh Valley Hospital, Judge Carol McGinely reached the same conclusion.
But it was not until last month that the issue was finally (I think) put to rest. In Tillery v. CHOP, the Superior Court finally had an opportunity to address the issue. Following the logic of Judges Rambo and McGinley, the Superior Court rejected any argument that the MCARE Act required future medical costs to be reduced to present value by the jury. To the contrary, the Superior Court held that future medical costs are only reduced to present value for purposes of calculating attorneys’ fees.
James Goslee is a trial attorney in Philadelphia and can be reached at https://jamiegoslee.com/about/

Constitution, Courts

A Trial Lawyer in Federal Court- Grappling With Pseudo-Law

March 18, 2016 goslee10 Leave a comment

Litigation is often compared to sports. An imperfect analogy, but not a bad one. There are usually at least two “teams” (the “plaintiff” or “prosecutor” and the “defendant”) and normally a winner and a loser. The stakes for the players are often high. In criminal cases, the defendant’s very liberty is at risk. In the civil context, a monetary award can change the lives of both plaintiffs and defendants. This is particularly true for plaintiffs who have suffered catastrophic injuries and can no longer work, or are facing enormous medical bills. Because of the high stakes, both sides prepare zealously for their day in court. Trial is a winner-take-all proposition. It is an unscripted and unpredictable match, filled with drama, shifting strategy and gamesmanship. At the end of the trial, 12 random jurors (people with their own unique life experiences, education and inherent biases) will decide the winner and the loser. The decision is a profound one, often altering the lives of those involved.

In the mist of the inherent unpredictability of litigation, litigants and lawyers take some small comfort in knowing the process is at least governed by rules. And these “rules” are enforced by a judge, who plays a role very similar to a referee. The judge makes sure both sides play a fair game. So although litigants don’t know what the outcome of litigation will be, they at least know how the game is supposed to be played. And that is important. Because the thin line separating what is just from what is arbitrary is called predictability.

In large part, our entire legal system is set-up to establish predicable rules. This isn’t news. Our nation began with a bunch of colonist fed up with the arbitrary impositions of a monarch sitting on a throne across the Atlantic. It wasn’t so much the ridiculous taxes that had colonist fuming, it was the fact that they were being imposed out of left field, with no rhyme or reason. How can anyone live that way? With such uncertainty! We need rules because rules create predictability. Predictability, in turn, gives us at least a sense of control and allows us to plan our tomorrows. This isn’t so much a legal principle as it is an element of human nature.

But law is a reflection of human nature. So for the system to work, the law needs to be predicable. The law does not always need to be right. It does need to be consistent.

Written judicial opinions are a linchpin of our nation’s legal system and are paramount to ensuring consistent, predictable rules. One important point of a written opinion is to allow a judge to explain and justify his or her legal decision to specific parties in specific cases. But more important, judicial opinions either create or follow precedent. They either create new legal rules (for instance in cases where no rule has ever been established or where a prior rule is no longer viable), or they follow the legal rules that have been established in prior cases. In situations where there is a well-established legal precedent that still works, judges are expected and normally required to follow those established rules.

But let’s be clear. The point of legal precedent is not to create the “best,” the “most practical” or the “most rational” rules. That’s not it at all. The purpose of legal precedent is to create consistent rules that are consistently applied. In a simplified sense, legal precedent serves a similar purpose to a rule book in sports. You might believe that a specific rule is not fair or illogical. You might believe a specific rule is outdated and should be changed (happens all the time in professional sports). But as long as everyone knows the rules ahead of time and those rules are followed during “the game,” there is at least a rough sense of justice.

But, imagine a situation where two professional sports teams square off in championship game. Both teams put in a tremendous amount of work to get to this final game and made significant personal sacrifices. This “game,” this moment in time, will impact the future of these players. The outcome is not just about deciding the “winner” and the “loser.” It is bigger than that. There are financial stakes, careers and legacies on the line. No doubt there will be unpredictable moments, key turning points in the match. Both sides are hoping to play their best and catch a few lucky breaks along the way. As they walk out onto the field to start the match, neither side knows exactly what is going to happen. In fact they live every day in a world of stress and uncertainty. The only comfort these players have is that they know how to play the game. They may not know the outcome, but they know the rules. And that is something vital. Crucial. Because at its core, this “game,” inherently influenced by unpredictability and randomness, has a set of consistent principles that the players can rely upon. They can plan around these principles! Without them there is only chaos.

The whistle blows, the game starts. But then something funny happens. It is not truly funny, it is bizarre and utterly frightening. The referees who are supposed to be enforcing the rules are acting strangely, unpredictably. In fact they are not following the rules at all. They are making arbitrary decisions. They are not enforcing the written rules. They are making calls that seem to make no sense. Refusing to blow the whistle when it is clearly appropriate. The players are confused, tentative. They are not sure what is happening and not sure what to do. The game being played on the field is completely different than the game they have played throughout their career. They look to the referees for answers, but get no explanation that makes sense. With no guidance, the players throw out their game plan, ignore the rule book and start doing whatever the referees will allow.

At some point the game ends. One team is declared the winner. But everyone understands it is not a just result because the game was not played according to the rules. It was chaos. The losing team is demoralized and angry. They were never given a fair shot. The rug had been pulled out from under them by referees who decided, apparently on their own, to change the rules during the game. They feel betrayed, but utterly powerless. Although they are reluctant to say anything critical of the referees, even the winning team will concede that the game was strange and the rulings unpredictable.

The losing team really does not have much of an option. They can only complain to the league’s front office. They file a formal petition, a protest, and ask that the game be replayed. They point out that the referees were acting erratically and did not follow the rules. In fact their protest points out specific examples of the referees’ mistakes and demonstrates beyond question that the mistakes cost them the game. The response they get is cold comfort. The league’s front office sends a letter to the losing team and acknowledges that things went a little sideways during the game. The league concedes that the referees did not apply the rules as written and “yeah, okay, maybe some mistakes were made.” But, from the league’s perspective, it’s no big deal. It was only one game after all and no-one is perfect! Although the referees did not follow the rules in this particular game, it’s not like they created a whole new rule book. Next year, when the seasons starts again, the same old rule book that had always been in place will still be used. Next year the referees will be expected to follow the old rules – not the random decisions made by the referees in last season’s championship game. Maybe the losing team got the short end of the stick in this single game, they lost unfairly. But life is not always fair and in the scheme of things, all will be well. We don’t need to “replay” the game, because it was only a minor, one-time hiccup. The letter concludes by “reassuring” the losing team that if other referees in future games start applying different rules, if it becomes a consistent problem, the league will take formal action “to do something about it.” Until then, let’s all just move along.

The losing team is clearly not satisfied with this response. “Ok, great,” the team thinks, if it happens again the league will “do something about it.” But “what about us,” they say? “We lost a game we should have won!” “Where is the justice for us?” What is really frustrating though, is that everyone else in the league seems to be okay with the league’s explanation. Everyone seems to be okay with the fact that the losing team was treated unfairly. Justice for one particular team doesn’t matter, as long as unfair treatment does not become a systemic problem. So long as it does not happen again next year . . .

This fictional scenario seems absurd, even outrageous. It is an embellishment, to be sure. But the truth is that our federal appellate courts actually operate in an analogous manner. Today, federal courts of appeal decide most cases by issuing written opinions that are designated as “non-precedential.” The idea of a “non-precedential” opinion is to expeditiously resolve specific disputes between litigants without creating precedent. In fact, these non-precedential opinions contain a specific disclaimer that the decision is not precedential and “does not bind the court.” In other words, the circuit courts are basically saying, “Okay, well we decided this particular case this particular way. But, that doesn’t mean we won’t change our mind and do the opposite next time. Carry on and good luck.”

The fundamental problem with this approach are easy to see. But before discussing the problems with non-precedential opinions, why do these things exist in the first place? Ultimately, non-precedential opinions became a thing because of volume. Historically, federal appellate court decisions were published in bound books sometimes called “Reporters.” Still are in fact. In the 1950s and 1960s the volume of appeals began to rise dramatically and, thus, so did the volume of written appellate decisions. The consequence of this increase in appellate decision was that the official bound Reporter containing appellate court opinions was becoming too large and unwieldy. The Judicial Conference noted this problem, and also recognized that a lot of the opinions being crammed into the Reporter were redundant and only addressed well-established legal rules. Because these opinions were not creating new precedent or clarifying old precedent, they really were not all that important. So why take up space in the Reporter with these run-of-the-mill opinions?

The second issue, also the result of an uptick in volume, was that the number of appellate court judges was not keeping pace with the number of appeals. So as the number of appeals continued to grow, appellate judges were forced to churn out more and more opinions. The strain on judicial time and resources started becoming a problem.

So the Judicial Conference came up with a simple solution that would reduce the size of the federal appellate Reporter and relieve the strain on appellate court judges. Instead of the appellate courts deciding each appeal with a precedential opinion, why not create “non-precedential opinions”? The idea being that for run-of-the-mill cases, those that do not involve new issues of law or novel issues of fact, why not let appellate court judges dispose of these cases quickly, without much effort? A lot of time and attention is spent on precedential judicial opinions because litigants rely on those decisions and lower court judges are required to follow them (trial court judges are “bound” by the appellate court decision). Precedential opinions have a ripple effect, they impact everyone, not just the parties involved in the specific lawsuit being decided by the appellate court. But if we allow appellate judges to designate an opinion as “non-precedential,” we can do away with this ripple effect! Other litigants will not be allowed to rely on “non-precedential decisions” and lower courts will not be bound by them. It’s like it never happened! These non-precedential opinions don’t really exist! And if they don’t really exist and won’t impact anyone else, appellate court judges do not need to spend as much time on them. If they get it wrong, it’s no big deal because the damage will be limited. Plus, these “non-precedential opinions” will not be placed in the federal Reporter so they would not take up valuable space on the bookshelf. Sounds like a great plan, right?

For their part, the various circuit courts of appeal were really digging this new “non-precedential” opinion deal. In fact, non-precedential opinions became so popular that the in the past 10 years, the vast majority of all appellate court decisions are non-precedential. From 2000 through 2008, for instance, approximately 85% of the Third Circuit’s decisions were non-precedential (the Third Circuit includes Pennsylvania, New Jersey and Delaware).

But this “non-precedential” opinion approach has its problems. In fact it is a quintessential example of a plan looking really good on paper, but having really troubling implications. One of the prime problems being that non-precedential opinions appear fundamentally unfair. Another is that non-precedential opinions turn the entire concept of predictable rules on its head.

Let’s start with the issue of fairness. First of all, allowing judges to “decide” which cases to designate as non-precedential (i.e. not worthy of publication or precedent) gives the unmistakable impression that appellate courts prejudge certain cases before even getting to the merits. From the outside, it looks like appellate courts are imposing a subjective and opaque classification system. Deciding, without explanation, which cases are worthy enough for publication (and, some would argue, entitled to more time and attention) and which are not. From an optics perspective, this is problematic. Although it is true that most appeals do not implicate broad social, political or financial concerns, that doesn’t mean they are insignificant. You can bet that even a “run-of-the-mill” case is vitally important to the litigants involved. For “the little guy,” when their appeal is dispatched with a short, terse opinion, it looks like the appellate court did not take their case seriously. It feels like they didn’t get a fair shake. Perception and all of that.

The length and quality of non-precedential opinions often make matters worse. I have not done any research on this issue and I don’t have any empirical evidence, data or metrics supporting my position. However, in my experience as a practicing trial lawyer (including my time as a federal law clerk), non-precedential opinions are often significantly shorter and contain less rigorous analysis than precedential decisions. There are exceptions of course. But, in general non-precedential opinions appear hastier. The product of a system valuing quantity over quality. But is this what we want from our courts of appeal?

Fairness aside, it is difficult to square non-precedential opinions with a legal system that values consistency, predictability and, quite frankly, due process. As I noted above, at the very top of every non-precedential opinion is a disclaimer that the opinion you are about to read is not binding precedent. That allows the same circuit court to decide the same legal issues differently in different cases. Applying the law differently to different people is inconsistent with bedrock constitutional principles, namely due process. To be fair, our nation is dual sovereignty with 50 states and 13 federal circuits. So we are bound to end up with inconsistent legal rulings across the federal circuits (called “Circuit splits”) from time to time. But when different circuits decide the same legal issue differently, when there is a Circuit Split, the Supreme Court usually steps in to resolve the inconsistency.

But this is different. It’s different because non-precedential opinions allow and arguably encourage individual circuit courts to render inconsistent rulings. Simply by designating an opinion as non-precedential, a circuit court is explicitly reserving the right to change its mind next time it hears the same issue. The practical impact of such a discretionary system is that it provides zero clarity to litigants. It provides zero predictability. Today the court of appeals is saying the law is X, tomorrow it is Y, and next week it is Z. It doesn’t matter though, because the opinions are “non-precedential!” They don’t really count!!!!

Sounds questionable, right? Sounds fundamentally flawed? It is, and the inherent problems are exposed when a losing party asks the circuit court for a rehearing en banc. Normally an appeal to a circuit court is heard and decided by a three judge panel. On rare occasions, the entire court of appeals for a circuit will decide a case together. So, for instance, in the Third Circuit there are presently 14 active judges. Normally a case appealed to the Third Circuit is sent to a panel of 3 judges. This is done for efficiency reasons. If all 14 judges had to decide every case not a lot of cases would be decided. When a three judge panel makes a decision, the losing party can ask for a rehearing en banc, meaning that all of the judges on the Third Circuit reconsider the case together.

An en banc hearing is extraordinarily rare and requests for a rehearing en banc are almost always denied. The criteria for granting an en banc rehearing is very limited. One of the primary factors the Third Circuit will consider in deciding to proceed with an en banc rehearing is whether the panel’s decision “involves a question of exceptional importance.” Naturally, when a losing party requests an en banc hearing they typically argue that not only was the panel’s decision wrong, but the legal issue is so important it requires an en banc rehearing to fix the mistake. And here is where the justification and rational for non-precedential opinions begin to break down. If the winning party files a response to the request for a rehearing en banc, it often argues that the panel’s decision was correct AND even if it is wrong, the decision is not of “exceptional importance.” Why not? Well if the panel’s decision was non-precedential (and it almost always is), the winning side usually argues that because it is a non-precedential opinion, other courts and other judges don’t need to follow it. In fact they can ignore the decision and “fix it” next time. In other words, there is no ripple effect. The panel’s decision may be wrong, but the only person impacted is the guy who lost. That may be sad for him, it may be unfair, but life is not fair and his unfortunate loss is not “exceptionally important.”

The crazy thing is, this is a legitimate argument.

So what’s the solution? The easy answer is to do away with non-precedential opinions altogether. The historic justification for creating non-precedential opinions is dubious and at the very least outdated. Most attorneys do their case research online these days so ongoing concerns about thick, unwieldy hard-copy Reporters are questionable. Nobody really uses them! It is also fair to question the argument that non-precedential opinions can be drafted faster and more efficiently than precedential decisions. If the justification is that non-precedential opinions are reserved to routine decisions based on well-established law, well then why can’t these decisions be made just as quickly without assigning a “non-precedential” label? Shouldn’t appellate judges make the same effort in all cases? Shouldn’t they stand by the quality and clarity of their work?

Look, I get it. Some will argue there are still advantages to non-precedential opinions. It’s faster (again I doubt this). It’s more efficient! Maybe. If you value speed and efficiency in appellate review, maybe this is a good thing. But if you value individual justice, if you value predictability, well, you may have some legitimate concerns.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Constitution, Courts, James P. Goslee, Uncategorized

Think the First Amendment Applies in Philadelphia? Only if You Know the “Magic Words”

February 26, 2016 goslee10 1 Comment

Grunge Stars And Stripes Free Stock Photography

Free Speech – It’s More Than Just Words

The right to speak freely is the right to live freely. It is a fundamental aspect of liberty. Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression. And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy. But it is even more than that. It is part of our national identity as Americans. We are free people. That means, above everything, we can speak freely.

You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind. It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right? We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right? The First Amendment applies automatically, right????? Well, until last week, you would be correct. But according to one federal district court judge in Philadelphia, we are all sadly mistaken.

Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context. The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad. The First Amendment itself states:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly. Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.” We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.” Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.

The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent). And there is no itemized list of non-verbal communications that can be considered “speech.” Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.

Is Videotaping Police Officers Protected by the First Amendment?

Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers. This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras. But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers. This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.

Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech. In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment. First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer). Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection. The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.

Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment. The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits. The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:

It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information. . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’

Fields v. City of Philadelphia

Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia. The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers? Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not. It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling. Rather, it is how he rationalized his decision.

In 2013, Richard Fields was a student at Temple University in Philadelphia. Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party. Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture. So he took one. At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.” For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.” It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.” The officer also took Fields’ phone and began looking through the photos, but did not delete them.

Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center. At some point during the protest, one of the protesters was being arrested. Geraci took out her phone and began recording the arrest. According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest. She was not arrested or cited.

Both Fields and Geraci sued the City of Philadelphia. Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment. Both suits came before Federal District Court Judge Mark Kearney.

At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers. As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”

Now, for legal observers this case seemed like a slam dunk for the plaintiffs. As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies. But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims. The decision itself is almost certainly wrong, but that’s not the real issue. The real issue is the legal reasoning Judge Kearney used to reach his conclusion. In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.

According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.” More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.

In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right. But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.

Why not? Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist. From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply. The Constitution does not put the burden on citizens to invoke guaranteed rights. If it did, those rights would not be guaranteed, they would be contingent.

Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!). With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them. It really doesn’t make much sense.

To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear. And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3^rd Circuit and had the authority and the responsibility to decide the case on the facts before him.

But at the end of the day the Fields decision was wrongly decided. Constitutional rights are considered “guaranteed” for a reason. The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked. Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.

It seems inevitable that the Fields decision will be overturned by the 3^rd Circuit. But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.