Tuesday, July 15, 2025

ARTICLE: TAKE ME OUT TO THE BALLGAME: Little League Tips for Big League Lawyers

As we get ready for baseball's All-Star game tonight, here's an article of mine that appeared in the May 25, 2010 edition of the Pennsylvania Law Weekly


Take Me Out to the Ballgame
Little League tips for big league lawyers


By
Daniel E. Cummins
Pennsylvania Law Weekly/The Legal Intelligencer
May 25, 2010


It's that time of year again — Little League baseball is starting up for boys and girls.

The smell of hotdogs and Cracker Jacks permeates the air, while spent sunflower seed shells crunch underfoot on the dusty floor of the dugout.

For kids, it's a time for new uniforms, cleats and friends. For parents, on the other hand, it can be a time for more laundry, over-the-top coaches hellbent on winning and some equally overbearing fellow parents. As Yogi Berra said, "Little League baseball is a very good thing because it keeps the parents off the streets."

In any event, it's a time for great memories.

During one "quick" two-and-a-half hour long Little League baseball game, it became clear that a lot of the coaching shouted by the managers and others could also be applied to improve one's game in the practice of law.

'Let's Warm Up and Stretch'

Warming up and stretching in baseball prevents injuries. Doing the same before any court appearances may prevent damage to the client's case.

Whether it be the simplest of oral arguments on a slam dunk motion to compel, a direct examination, a cross-examination or an opening statement or a closing argument, all can benefit from a warm up by, at the very least, outlining the presentation on paper.

The more involved court presentations can be improved by a practice run-through in front of another person.

Like pre-game calisthenics or drills, going over such important presentations out loud, in a repetitive fashion, can assist one in committing the same to memory and tweaking it where necessary.

Even better, taking a lap with the presentation in front of another attorney or a lay person can result in tips on ways to improve upon the questioning of a witness or an address to the jury.

'Keep Your Eye on the Ball'

It is said that one of the hardest things to do in all of sports is to hit a pitched baseball. In fact, the "Splendid Splinter," Ted Williams, one of baseball's greatest hitters, said, "The hardest thing to do in baseball is to hit a round baseball with a round bat, squarely."

Analogously, one of the hardest things to do in the practice of law is to keep your eye on the ball when an opposing counsel is throwing all kinds of purposefully distracting maneuvers your way.

The best way to stay focused in this regard is to not take matters personally and to not stoop to the opponent's level in angry retaliation.

Wherever possible, ignore the shenanigans being put forth by opposing counsel and stay the course on your theory of the case. Keep your eye on the ball. Your client will be better off for it.

'Hustle!'

Everyone's always required to run in baseball. The coaches are always shouting, "Hustle," "Move," "Chase it down," "Run it out," "Run it in!"

Hustling in the practice of law includes quickly answering correspondence, promptly responding to discovery and motions, and staying ahead of opposing counsel's tactics. This will allow one's case to move in a quicker and smoother fashion, hopefully toward the desired result.

The key is to honor your client's case by continually hustling and not loafing, all the way to the conclusion of the matter. As Yogi Berra said, "The game isn't over until it's over."

'Eddie! Run to First Base ... Not Third!'

Learning the fundamentals and the rules of the game in T-ball lays the foundation for a good ballplayer later.

Former St. Louis Cardinals manager Whitey Herzog advised: "Fundamentals are the most valuable tools a player can possess. Bunt the ball into the ground. Hit the cutoff man. Take the extra base. Learn the fundamentals."

The same applies in the practice of law, which is founded on rules and fundamental concepts.
As such, in addition to staying on top of new caselaw, a quick read-through of the Pennsylvania Rules of Civil Procedure on a periodic basis, even once a year, is recommended. This will not only refresh your memory of certain rules, and loopholes, but you may also surprise yourself by learning something new.

'Keep Your Butt Down!'

Perhaps nothing irks a coach more than seeing a ground ball go through the legs of an infielder who failed to get his butt down and his glove in the grass.

Something that falls through the cracks in the practice of law may unfortunately bring you much more trouble than an exasperated sigh and a big roll of the eyes from a coach.

To prevent such problems, it helps to regularly look ahead on the calendar, not only to the next week, but over the next 30 days to be reminded as to what's coming up. If the time permits, start a draft of that brief now that's due 30 days out.

It would also be beneficial to stay on top of the mail and phone calls by attempting, whenever possible, to return such communications on the spot and certainly no later than 24 hours after receipt. Once incoming letters and phone calls get older than 24 hours they are more likely to be forgotten, especially with the onslaught of more letters and phone calls received by a fortunately busy attorney.

Staying on top of the calendar and these communications will prevent things from going through the wickets and will make it less likely that you will be charged with an error.

'Cover All the Bases!'

A good baseball coach teaches his players to cover all of the bases on any hit ball.

If the coaching is good, the players are trained so that the first baseman covers first, the second baseman or shortstop go to the bag at second and the third baseman covers third at the crack of the bat. Although such coverage of the bases is usually wasted energy, there is always the potential that this maneuver will come in handy and may even secure an out or save a victory for the team.

Therein lies the pressure of the practice of law — the need to cover all of the bases all of the time. In addition to staying on top of incoming communications as noted above, another way to cover all the bases is to stay on top of the law.

New developments in the law can be committed to memory not only by reading updates but by actively typing case summaries and citations to a running list on a file on your computer.

Whether it be by reading the case digest section of the Pennsylvania Law Weekly, the blue advance sheets of the Atlantic Second Report, or other sources of updates, knowing the latest cases in your field of practice will always keep you ahead of the competition.

'You Never Argue With the Umpire!'

While it may have been socially acceptable in 1977 for Billy Martin to kick dirt all over an umpire's shoes and for Tommy Lasorda to get in an ump's face and say things like "%#@&*!%#@&*%," such is not the norm any more in baseball.

Nor is it in the practice of law, although the legal drama shows on TV these days may continually tempt young lawyers into believing it is acceptable to be flippant and disrespectful toward judges.

Candor, respect, and deference remain the rule in the courtroom and should be honored at all times.

So as much as you may want to go all Earl Weaver on a judge and his or her decision (which is probably the correct decision anyway), it's probably best to leave things unsaid or take it up on appeal.

'You'll Get 'Em Next Time.'

In baseball, failure is not the end of the world — it's expected. Strikeouts and errors happen all the time. Mediocre catcher and great baseball announcer, Bob Uecker, once proudly stated, "I led the league in 'Go get 'em next time.'"

The key in Little League to keeping young ballplayers coming back for more, despite errors or strikeouts, is repeated encouragement.

Noting that perfection is not the goal in baseball, Ted Williams stated, "Baseball is the only field of endeavor where a man can succeed three times out of 10 and be considered a good performer."

While attorneys should strive for better than a .300 average in terms of successes, a lawyer obviously can't win every motion or every case. But what counsel can do is keep their head up, learn from the losses, and move forward in search for a better result the next time around. To quote Babe Ruth, one of baseball's all-time greatest homerun hitters, "Don't let the fear of striking out hold you back."

'Line Up to Shake Hands!'

Last but not least, don't forget to line up at the end of every "game," whether you win or lose, to shake hands with your opponent and say, 'Good game.'

And so while you're out there in the game of law, enjoy it while you're in it, for as the great baseball announcer Vin Scully once said, "It's a mere moment in a man's life between the All-Star game and the Old-Timer's game."


Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation in these types of cases. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.


Reprinted with permission from the June 4, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Source of image:  Photo by Mick Haupt from www.unsplash.com.

Friday, July 11, 2025

Federal Court Rejects Complaint Containing Shotgun Pleading Against All Defendants


In the case of Comer v. American Transmission Systems, Inc., No. 23-1464 (W.D. Pa. May 29, 2025 Hardy, J.), the court granted a Defendant’s Motion to Dismiss where the Plaintiff engaged in improper shotgun pleading in a Complaint.

In this matter, the Complaint contained multiple counts that each adopted all of the allegations of all preceding Counts.  The Complaint also asserted multiple claims against multiple Defendants without specifying which of the Defendants were more specifically responsible for which alleged acts or omissions. The court found that the Complaint did not allow for an understanding as to which claims were brought against which of the Defendants.

In its decision, the court separately reaffirmed the Pennsylvania law that holds that a Defendant hiring an independent contractor is not liable for the injuries sustained by that independent contractor’s employees from conditions that were equally obvious to the independent contractor and its employees.

Here, on the liability issues pled, the court found that the allegations in the Complaint did not establish any superior knowledge on the part of the Defendant at issue, any peculiar risk, or any retained control. Rather, the court found the allegations to be legal conclusion not supported by any specific facts.

Lastly, the court affirmed the general rule of law that, given that the Plaintiff’s estate had obtained a worker’s compensation recovery, the estate was not permitted to sue the decedent’s employer in tort.

The court did allow the Plaintiff an opportunity to file a more specific Amended Complaint.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Wesley Tingey on www.unsplash.com.

Monday, July 7, 2025

Court Denies Defendant's Motion to Dismiss Based on Forum Non Conveniens Doctrine in a Case Involving a Plaintiff from a Foreign Country


In the case of Charles v. QVC, Inc., No. 24-6703 (E.D. Pa. June 10, 2025 Savage, J.), the court denied a Motion to Dismiss based on the doctrine of forum non conveniens in a case involving a jurisdictional and/or venue issues in a case involving a Plaintiff who was a resident of a foreign country and who was injured in her home country of Trinidad.

This matter arose out of an incident during which a pressure cooker that the Plaintiff had purchased exploded while the Plaintiff was using it.    

The foreign Plaintiff brought suit in the Eastern District of Pennsylvania on a products liability claim relative to a product made in America. Even though the product was not manufactured in Pennsylvania, the Pennsylvania based employee made media representations about the product by marketing it from its Pennsylvania studios. The court additionally noted that one of the Defendants had a principal place of business in Pennsylvania.

The court noted that, although the Plaintiff’s foreign country was an adequate forum for the litigation of his personal injury matter, a foreign Plaintiff can support her choice of forum by making a strong showing of convenience.

The court in this matter noted that the connection of this matter to Pennsylvania established the convenience element in this matter.

More specifically, the court noted that none of the evidence located in the Plaintiff’s home country was critical for the litigation of the claim.

The court additionally noted that, as for the witnesses based in the United States within the Defendants’ control, it would be significantly more convenient for those witnesses to travel to a trial in the United States rather than going abroad to a foreign country.

Notably, the court also emphasized, on the issue of convenience, that the depositions of any relevant witnesses could be conducted remotely.

The court also found that the completion of a trial in the United States would be more convenient to all of the parties interested.

Lastly, the court emphasized that Pennsylvania has an interest in the safety of products introduced into the stream of commerce from Pennsylvania.

The court in this matter ruled, after careful consideration of the private and public interest factors, that litigating this case in the Eastern District of Pennsylvania would not result in oppression and vexation to the defendants out of all proportion to the Plaintiff's convenience. As such, the court denied the Defendant's motion to dismiss this action on forum non conveniens grounds.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Eastern District Court Transfers Tioga County MVA Case to Middle District Court Under Doctrine of Forum Non Conveniens

In the case of Woodward v. General Motors, LLC, No. 2:25-CV-00605-JDW (E.D. Pa. June 6, 2025 Wolson, J.), the Eastern Federal District Court in Philadelphia granted a Motion to Transfer the case to the Middle District Court under the doctrine of forum non conveniens.

In this case, the Plaintiff's decedent's fatal motor vehicle accident involved occurred in rural Tioga County, which is located in the Middle District Court's jurisdiction.  In part the Plaintiff's estate stated a crashworthiness products liability claim.

The court noted that, while the Plaintiff would prefer to litigate the case in the Eastern District, all other relevant factors favored the transfer of the case to the district where the accident happened.

The court additionally noted that any claims sounding in product liability are deemed to arise where the product was utilized and where the injury occurred.

In this matter, the court noted that the site of the accident, the relevant evidence, and the important witnesses were all located outside of the Eastern District.

As such, the Court granted General Motors' motion to transfer the case.  

Anyone wishing to review a copy of this decision may click this LINK. The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo from Pennsylvanians for Modern Courts website.

Thursday, July 3, 2025

Decision Drives Home Importance of Preserving Objections and Issues for Appeal


In its non-precedential decision in the case of Munoz v. Children’s Hospital of Phila., 1388 EDA 2024 (Pa. Super. May 27, 2025 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of post-trial motions following a medical malpractice verdict in the amount of over $11.5 million dollars in favor of the Plaintiff.

Of note, the court ruled that a prior waiver of a preservation of an issue cannot be overcome by the trial court later addressing a waived issue in response to post-trial motions.

In this matter, the court ruled that, even though the Defendant hospital had not physically taken over the care of the decedent, who was still at a different facility, the Defendant hospital had funtionally done so by instructing the other facility’s staff on treatment measures. The Superior Court found that this was sufficient to create an assumed duty under the Restatement (Second) of Torts §323.

The weight of the evidence claimed was found to have been waived by the defense by the failure of the defense to specifically identify the challenges to the weight of the evidence in the Defendant’s Rule 1925(b) statement.

The Superior Court additionally noted that, relative to the Plaintiffs’ emotional outbursts during the course of the trial, the Defendant neither asked for a curative instruction or a mistrial.  As such, that issue was deemed to have been waived as well.

Lastly, the court on appeal ruled that the $14 million dollar verdict was not excessive under the facts presented.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.


Commentary:  This decision reminds one of the importance of making sure all issues for appeal are preserved on the record.  

Issues that one wishes to take up on appeal should be repeatedly preserved during the pre-trial course of the matter and again at trial and again during the post-trial proceedings wherever possible and even if the issues were previously preserved.  Repeatedly confirm on the record, at every stage of the matter, that objections are continuing and that issues are being preserved for appeal.  

Don't worry about irking the trial court judge with repeated statements of a preservation of an issue for appeal by objection or otherwise.  Just keep going to bat for your client.

Keep in mind that trial court judges and appellate court judges will proactively look for opportunities to rule that an issue has been waived as part of their effort to avoid having to address an issue which may, in the end, require a matter to be tried all over again.

An attorney owes it to his or her client, and to herself or himself (in an effort to avoid any claims of legal malpractice), to repeatedly state on the record at every stage of the proceeding that you are preserving an objection or an issue for appeal so that there can be no finding by any judge that the issue has been waived. 

Tuesday, July 1, 2025

BRING YOUR CASE TO A CLOSE WITH CUMMINS MEDIATION

     BRING YOUR CASE TO A CLOSE



DANIEL E. CUMMINS, ESQ.

570-319-5899

dancummins@CumminsLaw.net


Contact CUMMINS MEDIATION SERVICES to set up your Mediation to bring your case to a close.

Who better to get an insurance company to increase their award
than the writer of Tort Talk and
an insurance defense attorney trusted by carriers to get them out of trouble?

HERE'S A SAMPLING OF JUST SOME OF THE FIRMS
WHO PREVIOUSLY SECURED SETTLEMENTS AT MEDIATIONS WITH CUMMINS MEDIATION SERVICES:

HOURIGAN, KLUGER & QUINN
LENAHAN & DEMPSEY
ABRAHAMSEN, CONABOY & ABRAHAMSEN
POWELL LAW
CEFALO & ASSOCIATES
LAW OFFICES OF JAMES D. FAMIGLIO
FOLEY LAW FIRM
NEEDLE LAW
OSTROFF GODSHALL
FISHER & FISHER
BLAKE & WALSH
CAPUTO & MARRIOTTI
HAGGERTY, HINTON & COSGROVE
SLUSSER LAW
VINSKO & ASSOCIATES
BISCONTINI LAW FIRM
MECADON LAW
LAW OFFICES OF LEO JACKSON
SOBO & SOBO

MARKS O'NEILL, O'BRIEN, DOHERTY & KELLY
RAWLE & HENDERSON
POST & SCHELL
SWARTZ CAMPBELL
BENNETT BRICKLIN & SALTZBURG
CIPRIANI & WERNER
MINTZER SAROWITZ, ZERIS, LEDVA & MEYERS
SHAY, SANTEE, KELHART & DESCHLER, LLC
McCORMICK & PRIORE
THOMAS, THOMAS & HAFER
SCANLON, HOWLEY & DOHERTY
MARGOLIS EDELSTEIN
MARSHALL DENNEHEY
ELLIOTT GREENLEAF
COLEMAN LAW OFFICES
PennDOT
SELECTIVE INSURANCE IN-HOUSE COUNSEL OFFICE
NATIONWIDE INSURANCE IN-HOUSE COUNSEL
TRAVELERS INSURANCE IN-HOUSE COUNSEL

Local Rule Adopted in Monroe County Regarding Submission of Exhibits at Hearings and Trials (Effective Today, July 1, 2025)


Here is a LINK to the new Monroe County Local Rule of Administration 5103, entitled “Custody of Exhibits. Special Provisions,” which goes into effect today, July 1, 2025.

This rule requires lawyers to put the exhibits that they intend to introduce during their hearing or trial on a USB flash drive.

The attorney presenting the exhibits will then either display the exhibit up on a screen in the courtroom, or provide paper copies of exhibits as duplicates of what is on the flash drive.

In any event, under the rule, the flash drive will be the exhibit that is introduced.

Under the rule, the presiding judge may waive the flash drive submission requirement for good cause shown.

It is noted that the rule has technical requirements for the maximum size of each file on the drive, that being 50 MB.

The rule also requires lawyers to save each exhibit as a separate file on the flash drive.

If an exhibit exceeds the 50 MB limit, it has to be split up.

The rule also requires that the flash drive have a separate file for an index of exhibits.

The rule otherwise specifies what audio, video, documents and photograph files must be used.

It has been reported that the rationale for the rule is that, on appeal, the record before the trial court will be transmitted electronically to the appellate court. Absent the use of the above procedure, any paper exhibits would have to be digitized by court staff before the record could go up on appeal, which puts a burden on the courthouse workers, especially when there is a large trial record.

It has been noted that the court is also trying to reduce paper storage in the courthouse.

Again, this rule goes into effect on July 1, 2025.

Note also that a similar local rule is already in effect in the Lackawanna County Court of Common Pleas.