You can cite Non-precedential decisions for persuasive value, starting in May.

No. 1,674

The Superior Court has prohibited citation of non-precedential decisions for some time. Unfortunately, there are a substantial number of them. The Appellate Rules Committee, however, has amended the Rules and comments to permit citation of all non-precedential appellate cases for their persuasive value, beginning in May 2019. This follows the practice of the Commonwealth Court.

New Rule 126 contains an additional guideline regarding citations of non-precedential authorities. The brief writer should indicate the purpose in citing the case, which shall be inserted parenthetically after the citation. Single judge opinions of the Commonwealth Court, which are considered non-precedential (except in election cases) may also be cited for persuasive value.

However, non-precedential cases may also be cited for the purpose of arguing law of the case, res judicata, collateral estoppel or noting a prior criminal proceeding that relate directly to the case at bar, but are not, by their nature, applicable in cases involving other litigants and other fact situations.

Brief writers are also encouraged to cite to Lexis and other on-line but unofficial compilations of caselaw. In addition to citing the beginning page of a case, we are also encouraged to cite to the specific page where a quote or discussion of the issue addressed appears.

CLT

You, the Witness.

No. 1,623

You raise your right hand and swear an oath to tell the truth. Then you have a prolonged conversation, in front of everyone, with your lawyer. He/she asks questions, you answer.

Image: ncaph.com

It seems simple enough. But here are a few things you should know and keep in the front of your mind.

You are on stage. You are being observed. Sit up straight. Be serious but polite. But be yourself — on your good behavior.
Visit the rest room before the proceedings begin. Check your hair in the mirror. Straighten your tie. Don’t wear a hat in the courtroom.
Listen to the whole question before you begin to answer. Pay attention. Don’t make the common mistake of thinking you know what is being asked from the first few words.
Answer the question you are asked. Don’t seize an opening to digress from the point at issue.
Don’t be in a hurry. Don’t get ahead of the question. It may take a series of questions to reach the point. If the questions are well-prepared, they will enable to you testify seamlessly to a series of facts that lay a foundation.
Be aware that it is usually necessary to lay a foundation before introducing documentary evidence. You may be asked if you signed a certain contract or took certain photographs and when that act was performed. It is ok to look at the document or documents for a few seconds before answering.
Don’t grab an opportunity to take a personal swipe against your opponent. Don’t try to joke. Attempts to be funny or appear lighthearted usually fall flat.
Be aware that there are topics that your lawyer does not wish to bring up, even though you see an opening to do so.
Your lawyer cannot ask you leading questions. When he or she asks you to tell the story of the relevant events on a particular day, do it. But don’t ramble on and on. There will always be another question.
If the opposing counsel interrupts your testimony with an objection, stop talking, even in mid-sentence. Wait for the judge or presiding officer to rule on the objection. If the objection is overruled, you may continue with your answer. If the objection is sustained, wait for another question. Never try to talk over the other lawyer, or especially the judge or presiding officer. Don’t try to squeeze the objectionable testimony in later. There would be another swift objection and (at minimum) you will look bad for trying. This is especially true when a jury is hearing the case. The judge may threaten sanctions.
On cross-examination, the questioner is able to ask leading questions. Answer them truthfully but carefully.
If the questioner cuts you off, or refuses to allow you to explain, your lawyer has the opportunity to return to the subject with re-direct examination after the cross-examination is over.
Don’t overlook the possibility that your lawyer may prefer to address a particular subject through testimony of another witness.
Don’t allow yourself to be drawn into an argument with the opposing counsel, even if he or she is treating you unkindly.
Don’t turn to another witness or your lawyer for help with an answer. If another witness is testifying, don’t call out the answer or start waiving your hand. Write it down and hand your note to your lawyer.
Be aware that your lawyer is listening to the proceedings and concentrating on the next thing to say when the other side is presenting its case. Do not try to talk.
Never gasp out loud or express surprise or derision while your opponent is testifying.
Do not discuss the case with anyone but your lawyer while in the courtroom. If the opponent says hello, acknowledge the greeting politely. If the opponent wants to talk, tell him or her to talk to your lawyer.
After the case is over, gather up all of your belongings and leave. You can talk with your lawyer afterward, at a suitable location. Remember, corridors have ears. So do elevators.

CLT

Category: Advocacy
Tags: being a witness

Give me a break department: What self-respecting dog would put up with wearing this?

No. 1,622

What’s the side pocket for? Poop bags? Treats?

Category: Pittsburgh Legal Back Talk

Waiting in Line for US Supreme Court Argument is a Profession.

No. 1,621

If you want to sit in the gallery at the Supreme Court for oral argument in important cases, you may have to arrive early. That is, 48 hours early. Students are paid by somebody with a strong interest in cases involving religious liberty to hold places. There are only 250 seats available to the public on a first-come-first serve basis. They were in line yesterday for oral argument on the case involving the war memorial cross. The same group has been in line for similar cases, including the same-sex wedding cake case, according to an article posted by CNBC.

CLT

Category: Pittsburgh Legal Back Talk

Unintended Consequences: Eastern Texas may Become a Tech-Wasteland

No. 1,620

Image: Apple Store on Boylston Street, in downtown Boston.

Marginal Revolution picked up a rumor that the two Apple stores located in eastern Texas will be closed and noted that they happen to be located in the favorite forum of patent case plaintiffs.

“In 2016, Marshall, Texas with a population of only 24,000, was home to an astonishing 25 percent of all patent filings in the U.S. In May of 2017, however, the Supreme Court ruled unanimously in TC Heartland v. Kraft Foods that plaintiffs can’t forum shop to find a friendly court. Instead patent plaintiffs must file in districts where the company being sued is incorporated or where it has an established place of business.

Businesses are now responding to the Supreme Court’s rule by shifting their establishments. Apple, for example, looks like it will close both of its retail stores within the Eastern District of Texas and instead open a new store in Dallas, just south of the Eastern District of Texas border.”

There are amazing implications here. Marshall Texas and environs may be destined to remain an economic desert. No new headquarters for technology companies. No retail outlets either. Think of what that could mean to the City of Pittsburgh and Western Pennsylvania if the Western District became an attractive forum for patent plaintiffs. The robotics industry and other CMU spinoffs might move away. Google might move its office. On the other hand, what if our District Court developed a reputation for a strong defense bias in patent cases? Would that suggest an opposite headquarters siting trend?

In the early 21st Century, a city without an Apple Store is no-place.

CLT

Category: Pittsburgh Legal Back Talk

Who is Soliciting Whom?

No. 1,619

Robert Kraft and numerous others are charged with “soliciting” at a Jupiter Florida massage parlor. The police were running a sting operation for the purpose of shutting down several businesses that were fronts for human trafficking operations. Obviously, the real perpetrators are the owner/operators of the enterprise that was engaged in providing prostitutes for hire.

CLT

Category: Pittsburgh Legal Back Talk

Sic Transit Gloria Mundi: Fire Sale on Steeler Jerseys Bearing Numbers 26 and 84.

No. 1,618

The purveyor of authorized professional team jerseys, Fanatics, has announced a big sale on Jerseys, most of which bear the name and number of Bell, with a few Browns. Here’s three of many.

Category: Pittsburgh, Pittsburgh Legal Back Talk

Whose watching the Store at Ask Avvo? Nobody Home But Us Robots.

No. 1,617

I’m a big Avvo fan. They have a Q&A feature where people can ask questions to lawyers and get answers. I participate in it and answer lots of them. However, the intake, as far as I can discern, does not have a human moderator. A computer evaluates the question and assigns it to a category based on key words. I say this because I have observed that, although the system works well on the whole, numerous questions are assigned to the wrong category based on the questioner’s use of inappropriate words. I assume that some questions are culled by the AVVO AI robot based upon words that are not acceptable. Well, in the specimen below we find a couple more words that should join the removal list. I did not answer the question because I don’t practice in the growing field of voodoo law.

This is an actual question I received from AVVO. As you read this, it has probably been taken down. Note that the spell was cast 20 years ago and the victim is not dead yet. Pretty weak spell.

Category: AVVO Answers
Tags: murder through witchcraft > witchcraft

Being In the Emergency Business

No. 1,616

The country is now enthralled in a discussion regarding whether a porous Southern border constitutes a national emergency. A common definition of an emergency is a serious condition that requires immediate action. Whether the open expanses along the national border constitute an emergency under a 1976 statute will now be addressed by the courts. But if the legal issues are not decided legally by the Supreme Court, they may be resolved politically in the next election.

Border security may well be the determining factor in 2020. That outcome is not assured and could be shaped, one way or the other, by unpredictable events. If the Democrats retake the White House, the legal controversy will probably become moot after a new President revokes Trump’s Executive Order on January 21, 2020.

In the meantime, we can only wait for the Supreme Court.

In reality, all litigation is an emergency. Unless a suitable settlement can be reached, somebody is going to lose. At stake are freedom, property, money and other rights. And the clock is always ticking. Sometimes the resolution is measured in days, but others in years. Emergencies can unravel swiftly or slowly and still be urgent.

Lawyers, especially trial lawyers, are in the emergency business. They are often required to analyze problems and act on the spot. In order to do this effectively, they must have the appropriate knowledge and experience. Most of that is gained on the job. But judgment and temperament are also required. So is the ability to counsel, console and reassure the client. Lawyers with these skills have been likened to social workers and clergy. Sometimes, it seems to me, grief counselor is more appropriate.

Just like a fireman or other first responder, the next emergency for a lawyer is only one ring of the telephone away.

CLT

Category: Civil Litigation, Decision making

Sunday Morning Meditation: the Bird of Paradise

No. 1,615

Image: Wikipedia

Pirate pitcher Chris Archer is a rare bird. He has a mindfulness coach who sends him messages like this Zen proverb: “The bird of paradise lands only on the hand that does not grasp.”

Archer is not likely to ever forget this maxim, nor will it stray from his mind for very long. He tattooed it on his upper left arm, together with a drawing of an open hand and a scale. The scale, I am told, represents balance.

This is a critical time in Archer’s career. He went through hernia surgery, which for a baseball pitcher is a singular event. He chose the surgeon carefully and spent most of the final months of 2018 in agony, rehabilitating basic skills we take for granted. Now he is pitching in Spring Training. Clint Hurdle announced that he will pitch the home opener on April 1.

Logically, the tattoo belongs on the left arm. His right hand grasps the ball.

The bird of paradise refers to a large variety of birds found mostly in Indonesia and surrounding islands. It also refers to severally plants from the same region with leaves that are reminiscent of these birds. Their common trait is bright and beautiful plumage. It may be a metaphor for happiness, which cannot be seized and held. Instead, the bird chooses to visit you. But, the visit is temporary. So enjoy it.

I must confess that I never heard this saying before. However, I do remember the one which I believe was attributed to the philosopher Johnny Carson. “May the bird of paradise fly up your nose.” It was an insult and a curse, which was the title of a dumb song by Little Jimmy Dickens that was played a lot on the radio, circa 1965.(You can find it on You Tube) The singer was grossly unkind to a beggar, a laundryman and a cab driver, each of whom wished this fate upon him. What would otherwise bring joy apparently turns out to be an imaginative and very painful way to die.

The real message has been explained thus. Don’t seek happiness directly. And don’t try to find it in pleasure, wealth or any of those pursuits. Do what you should be doing in this world and happiness may come.

And so, at the time of a new beginning for Chris Archer, I wish him a visit from the bird of paradise. And to you, too.

CLT

Category: Decision making, Pittsburgh Legal Back Talk
Tags: Chris Archer > Little Jimmy Dickens > the hand that does not grasp

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

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You can cite Non-precedential decisions for persuasive value, starting in May.

You, the Witness.

Give me a break department: What self-respecting dog would put up with wearing this?

Waiting in Line for US Supreme Court Argument is a Profession.

Unintended Consequences: Eastern Texas may Become a Tech-Wasteland

Who is Soliciting Whom?

Sic Transit Gloria Mundi: Fire Sale on Steeler Jerseys Bearing Numbers 26 and 84.

Whose watching the Store at Ask Avvo? Nobody Home But Us Robots.

Being In the Emergency Business

Sunday Morning Meditation: the Bird of Paradise

Welcome

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