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Archive for the tag “defense”

Statute of Limitations When a Defendant Dies

One the most basic legal principles is that statutes of limitations establish the time frames in which a civil suit can be brought in a given case and any attempt to bring suit outside of that time frame will inevitably result in the case being dismissed. For example, the statute of limitations for a personal injury matter is two years from the date the injury is, or should be, discovered (see: 42 Pa.C.S.A. §5524(1), (2), and (3)) and, for the most part, bringing a personal injury matter beyond that two year deadline will be cause to dismiss the claim.

One of the possible exceptions to the application of statutes of limitations is if the defendant dies during the pendency of the limitations period. As with any complaint, it is the duty of a plaintiff “to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and then institute suit within the prescribed period,” and that includes determining whether the defendant is living or dead at the time of suit. Lange v. Burd, 800 A2d 336 (Pa.Super. 2002).

Generally speaking, a dead person cannot be sued or be a party to an action Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000); Lange v. Burd, 800 A2d 336 (Pa.Super. 2002). However, 20 Pa.C.S.A. §3383 carves out an exception to this general rule permitting a dead person to be sued within one year after his death. §3383 goes on to say that its terms ought not be construed to shorten a two year statute of limitations period. Therefore, hypothetically speaking based on the above, if someone died on the day a plaintiff discovered his injury, then the plaintiff would have two years to bring suit against the deceased. At the other end of the spectrum, if someone died on the last day of the two year statute of limitations, then the plaintiff would have an additional year to bring suit against that defendant (for a total of three years). Finally, if someone died during the statutory two year period, the last date a plaintiff could bring suit against the deceased could be either the last day of the two year statutory period or the last day of the one year period stated in §3383 above, whichever came later. Longo v. Longo v. Estep, 289 Pa.Super. 19 (1981); Rylee et ux. v. Nicoll’s Administrator, 74 Pa.D.&C. 269 (1950); Telford Coal Company v. Prothero et al., 24 Pa.D.&.C. 183 (1935).

After considering the above, the obvious question arises as to whether one can substitute another party (e.g.: an estate) for the deceased defendant in order to pursue a plaintiff’s claims. According to applicable case law, one may bring suit against a decedent’s estate in order to pursue claims that would have otherwise been against the decedent himself if he were alive. If a complaint is filed against a deceased person, it must be withdrawn and refiled against his estate instead. Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000). The refiled complaint against the estate is subject to the same applicable statutes of limitations stated above for the decedent. See Montanya. The filing of a complaint against the deceased, instead of his estate, does not serve to toll the running of statutes of limitations described above in order to permit an action against the decedent’s estate after the expiration of statutes of limitations described above. See Lange.

The only way around the above statutes of limitations is to argue that there was some sort of fraud or intentional concealment of the death of the defendant which served to unfairly prejudice plaintiff in his attempt to bring suit. See Lange. The plaintiff does not have to prove that fraud or concealment was intentional, just simply that the opposing party’s conduct served to conceal the death of the defendant. See Montanya. When arguing that the opposing party committed fraud and/or concealed the death of the defendant, it should be noted that silence on the part of the opposing party is insufficient to constitute fraud or concealment. As a result, an insurance company or party failing to volunteer the information that the defendant is dead at any time – or even accepting service for the deceased at his residence – during the life of the claim and/or suit will not constitute fraud or concealment. See Montanya. The fraud or concealment must be the result of an affirmative action; consequently a passive action (e.g.: taking no action at all) is not an affirmative action. See Montanya. Moreover, the plaintiff has the burden of proving the fraud and/or concealment with clear and convincing evidence.

Although Pennsylvania law may provide a case with a little more life after the death of a defendant, ultimately statutes of limitations will apply to kill a case even if the death of a defendant did not do it already.

Originally published on June 24, 2014 in The Legal Intelligencer Blog and can be seen here.

Claim for Ineffective Counsel is Ineffective

The United States District Court for the Eastern District of Pennsylvania reviewed the Constitutional standard for the Sixth Amendment to the United States Constitution´s guarantee of counsel for criminal matters in the recent matter of U.S. v. Keller, 2013 WL 6409360.

Keller, an attorney, was a defendant in a criminal case where he was convicted of wire fraud consequent to misappropriating his clients´ money which he held in escrow for them. After his conviction, Keller moved to vacate his conviction on the basis of having ineffective defense counsel pursuant to the Sixth Amendment, which is the subject of the above-cited case. In order to warrant a reversal of a criminal conviction on the basis of ineffective counsel, Keller had to demonstrate that his attorney´s performance was deficient and that his attorney´s deficient performance prejudiced his defense.

In order to demonstrate that his attorney´s performance was deficient Keller had to show that his attorney´s conduct was not just deficient, but below an objective standard of reasonableness. An objective standard of reasonableness means that the lack of success of a particular tactical decision is not necessarily evidence of deficient performance. The court will not engage in hindsight to evaluate an attorney´s decisions. To demonstrate prejudice, one must apply a “but for” analysis where one must show that the negative result of a trial (e.g., the conviction) would not have occurred but for the deficient representation.

Keller listed a multitude of issues which he believed demonstrated deficient representation to warrant setting aside his conviction; the Court disagreed with each one and each will be briefly described below.

First, Keller claimed that an agreement between the prosecutor and his attorney regarding certain evidentiary issues demonstrated a conflict of interest as Keller claimed his attorney wanted to “go easy” on the trial judge in order to curry favor with the trial judge in a concurrent civil case his attorney coincidentally also had with the trial judge. The Court rejected this argument, pointing to a lack of evidence and the fact that the evidentiary issues were not really in dispute.

Second, Keller took issue with the fact that his attorney did not oppose the prosecutions´ admission of recorded conversations as evidence. The Court rejected this argument on the basis that no viable argument for their inadmissibility could be articulated, nor did Keller attempt to make one in his motion. The Court made it clear that failing to raise non-meritorious arguments does not amount to deficient legal representation. Keller subsequently argued that these recordings were obtained through duress and/or were unfairly prejudicial or coercive. He also claimed that the transcripts for the recordings were flawed. These arguments were rebuffed by the Court, which indicated that pressure to reach agreements is not necessarily duress and there was no prejudice as an undercover investigation is, under applicable law, explicitly not prejudicial or coercive. Regarding the transcripts, the trial judge specifically instructed the jury to give weight to the recordings over the transcripts for the same if discrepancies were found between the two; regardless, Keller never identified which portions of the transcript were inaccurate. Indeed, Keller offered testimony to explain the above during the trial so the jury which convicted him was completely aware of the issues at play. Therefore, Keller´s attorney electing not to object to the above was not deficient.

Third, Keller was critical of his attorney´s handling of witnesses. The Court noted that Keller did not demonstrate that his attorney´s decisions regarding witnesses had any effect on the outcome on his trial. Further, the additional witnesses Keller wanted to be called (who his attorney did not call) did not amount to deficient counsel as the Court believed their testimony would only have amounted to cumulative evidence anyway. Besides, the Court noted, the witnesses his attorney elected not to call had their own set of credibility issues (e.g., one uncalled witness was Keller´s fiancée) to make the decision not to call them tactically justified. The trial judge also gave Keller´s attorney significant deference in how aggressively he examined the witnesses especially considering the tactical options open to him.

Fourth, Keller then complained that his attorney did not make an issue of the fact that one of the jurors audibly complained of the length of deliberations and that another juror held the hand of the victim during sentencing. According to the Court, even if both of the above were true, neither action evidenced enough prejudice to warrant setting aside the conviction. Moreover, Keller does not make any allegation that the above actually resulted in prejudice, confirming the trial judge´s ruling on the matter.

Fifth, Keller lists a variety of times he believed his attorney should have objected to testimony on the basis of hearsay. However, the Court rejected this argument as well as Keller failed to demonstrate that the testimony at issue was actually inadmissible. Indeed, the Court found that the testimony highlighted by Keller was either admissible or was strategically allowed to be entered in as evidence to help his case; regardless, Keller did not demonstrate that the admission of the testimony at issue led or contributed to his conviction.

Sixth, Keller took issue with his attorney not raising the issue of alleged false grand jury testimony. However, the Court was not persuaded by this argument noting the extremely high standard (which is unlikely to be met) to successfully make an issue of testimony before a grand jury and that, even if Keller is correct, it would have had no effect on his indictment.

Finally, Keller raised complaints about his attorney´s performance during sentencing. Keller´s initial argument regarding his attorney´s alleged failure to object to the amount calculated as damages was simply factually wrong as, according to the Court, he did object. His subsequent argument claiming the lack of character witnesses called by his attorney was rejected by the Court as Keller´s own testimony conflicted with the testimony he claimed he wanted elicited from his potential witnesses. He concluded by criticizing his attorney´s failure to raise an argument regarding the alleged insufficiency of evidence at the trial to prove his criminal intent, but the Court was not persuaded by this argument either as the Court ruled that any arguments to that effect were not meritorious anyway.

As can be seen above, the standard to successfully prove one had ineffective counsel sufficient to meet Sixth Amendment scrutiny is extremely high, which should be of some comfort to practitioners. Ultimately, regardless of the multitude of arguments presented by Keller, none could meet the basic two prong test his arguments had to pass, namely that: (1) an attorney´s representation must be objectively below standards and (2) the poor representation must result in a negative outcome.

Originally published in Upon Further Review on June 16, 2014 and can be seen here.

The Secret to Unemployment Compensation Defense

I have litigated dozens, if not hundreds, of unemployment compensation cases.  I represent both claimants and employers but I more frequently represent claimants.  I think it is fair to say that claimants are more likely to win an unemployment compensation case against an employer due the nature of the law, but I think employers could increase their chances of success if they just spent a little more time and effort pursuing, preparing, and presenting their cases.

When I represent claimants I object pretty aggressively to the testimony, documentation, and evidence presented by employers mainly because they almost always are, to some degree if not totally, hearsay.  I think my success in representing claimants is due, at least to some degree, in preventing the employer’s evidence from being presented.

Now, I admit that I don’t want to give my opponents any advantages, but I think some very basic things could go a long way for employers.  Employers just do not present sufficient competent evidence to win.  Documentation, as much as is relevant, is always helpful.  When wondering whether to bring something, it is always wiser to bring it and not need it than the opposite.  Unfortunately, much of the documentation brought as evidence contains the statements of people who do not appear at the unemployment compensation hearing and is, therefore, hearsay.

This leads me to the single biggest error made by employers at unemployment compensation hearings, which is their failure to bring witnesses.  If an employer wishes to have documentation with the statements of others introduced into evidence at an unemployment compensation hearing, then the employer must bring the person(s) who made the statements to the hearing to provide testimony as to the statements in the documentation.  Furthermore, if someone is terminated for cause, then a witness to the incident(s) of misconduct giving rise to the termination is critical to win an employer’s case.  Many employers will bring the “boss,” whether that is the C.E.O. or president or manager or what have you, as a witness.  The problem is that the boss is usually too disconnected to have any personal knowledge of the claimant’s alleged misconduct which gave rise to his termination.  Therefore, any testimony from the boss about the misconduct is hearsay.

Another typical mistake is to bring the human relations person to the hearing.  The same problem with the boss applies to the HR person.  While the HR person can certainly introduce documentation in a person’s employee file, this person too is almost always too disconnected from the claimant’s alleged misconduct to have personal knowledge of it; as a result his testimony is hearsay as well.

When it comes down to it, an employer must bring sufficient witnesses who have personal knowledge of the issues at hand to win its case, otherwise employers will consistently be at a disadvantage at unemployment compensation hearings.

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