July 7, 2011 by Dan Siegel.

Here’s my Facebook post today about Wells Fargo Bank:

While I have not written about this before, the latest events make me want to be sure the world knows how poor the service is at Wells Fargo Bank. Since 2008 (yes 2008), I have been plagued by errors, poor customer service, etc., all of which came to a head when Wachovia customers were transferred to Wells Fargo, and accounts were commingled, billpay screwed up, etc.

I have over 350 pages of email documenting the issues, dealing with everyone from Regional President Hugh Long to Senior Vice President Laura McCluskey, and everyone in between. Not only are the problems never fixed, but when they try, new problems arise. Thus, after the bank decided to have all of personal bills default to be paid from my business account, the antics of correcting the mess began. Little did I know that when they “corrected” this, that a “subscreen on their horrendous website would still list my law office account as the default. What was the response? “After his Bill Payees were moved by the Bill pay team, I reach out to confirm with Mr. Siegel and asked him to sign into both and confirm all was not correct and sorry did not get feedback that the default funding account was showing as the Business account.” Ooops, because I didn’t see the error, it was my fault. It gets better. In correcting the billpay, Wells Fargo also deleted a payment to its own credit card company.

Weeks after they “fixed” the problem, I received an email and then a perfunctory form letter (or so it seems) confirming that “Additionally, it has been verified that no negative information has been sent to credit reporting agencies in association with this payment.” Guess what? Yesterday, I received a letter from the bank telling me that my interest rate was raised because of the late payment. Here’s what Laura McCluskey confirmed, “We uncovered that the rate increase from just over 11% to over 25% is due to the late payment in May on your business credit card.” Yes, they screw up, tell you that it didn’t hurt your credit, and then they themselves want to penalize you.

Oh, and what has been president Hugh Long’s response. Let’s see. First, he came to my office asking me to stay a customer. Then, when more screw-ups occurred, Hugh Long blew me off, saying “I regret that despite the best efforts of Ms. McCluskey and others in our company that we have been unable to meet your expectations around our bill payment product. Based on my reading of your emails, I am not at all confident that we can satisfy you going forward.” In other words, we screwed up all of your accounts, so go pound sand.

And, when I asked about compensation for my days and days of problems (don’t even ask how badly they screwed up the Quicken conversion) (and don’t ask about all of the other problems), Laura McCluskey was quick to inform me that “We value your business, and really hope that you continue to bank with Wells Fargo. We are not able to offer compensation for any issues that have occurred.”

Oh, in response to the recent credit card and credit issues, Hugh Long has been silent. He reminds of my high school principal. We joked, no one ever saw him unless it was a good thing, i.e., a PR moment. For Wells Fargo, this has been a PR epic and they don’t care. Oh, I tried to reach the President of the Bank in California. Forget it. You can’t do it, or at least I couldn’t, and I spent an hour or more trying.

Wells Fargo trumpets: “In print, on radio and on TV, you’ll find simple messages (developed jointly by both Wells Fargo and Wachovia), which explain some of the advantages of our new combined company. One team, twice as strong is a message that will be heard consistently throughout the campaign.” Perhaps Jay Leno could deliver this line.

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May 22, 2011 by Dan Siegel.

As a member of numerous bar associations, I know full well that they won’t always take actions, or take positions, with which I agree. That’s natural. For example, I was not a “fan” of the Association of Trial Lawyers of America’s decision to change its name, or the efforts by the Pennsylvania Bar Association to create a commission to consider revisions to the Pennsylvania state Constitution. And I have certainly disagreed (vocally) with some leaders of the Philadelphia Bar Association. But as a member (paying my dues myself), I accepted those decisions and still supported the organizations. I never believed that my disagreement on one issue or with one person was fatal to my desire to support the organized bar and its efforts.

Recently, one Pennsylvania firm chose to discontinue the membership of all 70 attorneys from the Pennsylvania Bar Association because they disagreed with the PBA’s opposition to the Fair Share Act, a proposed law that would dramatically revise the law of joint and several liability in Pennsylvania. Interestingly, the firm’s decision seems more calculated to seek more clients than it does to oppose the PBA’s efforts. Otherwise, instead of just issuing a statement, why did the firm include a press release from House Majority Leader Turzai, which the firm notes “praises [the] firm’s bold decision,” and one from the National Federal of Independent Business (with a link to the NFIB.org website) in support of the firm. And the fact that Majority Leader Turzai’s press release was dated the same date as the firm’s resignation letter further heightens the perception that this was a coordinated political effort.

Certainly, the firm can and should advocate its views, and has every right to try to assure its clients that it does not agree with PBA’s position on this controversial issue. I have no objection to any firm doing so, and believe firms should do so. It is a shame, however, that the PBA loses 70 members who have contributed and would have contributed for many years. Who loses as a result? The 70 attorneys do, and they lose their opportunity to try to convince PBA in the future when it might again take a position with which the firm disagrees. It’s like voting. If you don’t vote, you can’t complain. Now, when the PBA, the voice of Pennsylvania lawyers speaks, the public will assume its voice includes the majority of lawyers, even some who no longer are members.

Posted in Bar Associations, Law Firms, Commentary, Random Thoughts | Print | No Comments »

May 22, 2011 by Dan Siegel.

While advertising can be filled with hype, lawyers are supposed to comply with the Rules of Professional Conduct, which limit the content of their advertisements to statements that are quantifiable. In other words, an attorney can ethically say that he has had 14 verdicts of one million dollars, or that she limits her practice to a particular area. But lawyers in Pennsylvania cannot state, for example, that they are speciailists (unless they have been certified as a specialist by a Board approved by the Pennsylvania Supreme Court) or make statements that can’t be quantified (tested). Yet they do so, and apparently with impunity.

The most recent example I have confronted is a lawyer who advertises on sports talk radio in Philadelphia and on the front page of the Legal Intelligencer, the daily newspaper for lawyers in Philadelphia. In the radio ad, this lawyer was described as not only an excellent lawyers, but the “best lawyer in America.” Right! And I have a bridge to sell you. That same lawyer advertises for referrals on the front page of the Legal, encouraging other attorneys to refer to the firm because they are the “best.” My point is not that this attorney is not a good attorney, it is that such advertising blatantly violates the Rules, and no one seems to care.

This is only one example, and this lawyer/law firm is not alone, although the hype as the “best in America” is grander than any ads I can recall. The ads are everywhere. They are on TV and radio, for lawyers who claim to have written “the book,” as though the practice of law began and ends with them. Or, the many other lawyers who claim superiority based upon their egos and no quantifiable data. For lawyers who try to comply with the Rules, however, these ads are discouraging. So are the many that don’t comply with Rule 7.2, which governs the content of advertisements, a Rule that seems to be breached as much as it is complied with.

I believe in free speech as much as anyone, but isn ‘t it time for the Rules to either be enforced (or tested if the “best lawyer in America” believes the Rule violates his Constitutional rights) or eliminated. Otherwise, why have Rules? Or why should other lawyers even try to comply with them?

Posted in Ethics/Professional Responsiblity, Law Firms, Random Thoughts | Print | No Comments »

March 10, 2011 by Dan Siegel.

For most people, the word “computer” conjures up images of a traditional desktop computer and monitor, or perhaps a laptop or even a netbook. Few, if any, would associate the word with their cellular phone. However, it is undeniable that modern cell phones are, more and more, performing tasks for which we would ordinarily use our computers. We can check our email, surf the web, stream music and videos, and download software, all with a little device that fits in our pocket.Recently, in United States v. Kramer, 2011 U.S. App. LEXIS 2367 (8th Cir. 2011), the United States Court of Appeals for the Eighth Circuit held that, under the definition provided by 18 U.S.C. § 1030(e)(1), even a cell phone used only to make phone calls and send text messages constitutes a computer.

This statute defines a computer as a device which “performs logical, arithmetic, or storage functions.” The Eighth Circuit determined that a cell phone performs logical, arithmetic, or storage functions “each time an electronic processor performs any task—from powering on, to receiving keypad input, to displaying information.” According to the court, even the most basic function of a cell phone—placing a phone call (I forgot they could do that!)—requires the phone’s processor to perform logical, arithmetic and storage functions. Therefore, even cell phones without internet access and web browsers constitute computers under this statute.

The implications of this decision are far-reaching. First, 18 U.S.C. § 1030, the “Fraud and related activity in connection with computers” section of the Federal Crimes Code, now applies to fraudulent access and usage of cell phones. Additionally, as was the case for Neil Scott Kramer, defendants may face a sentencing enhancementfor “use of a computer” to facilitate the commission of certain crimes. Further, this could open the door to new rules regarding searches and seizures of cell phones, and could broaden laws relating to computer hacking and internet crimes. It remains to be seen whether other courts, including the United States Supreme Court, will agree with the Eighth Circuit’s analysis.

Posted in Ethics/Professional Responsiblity | Print | No Comments »

February 18, 2011 by Molly Gilligan.

In law school, legal writing professors teach us how to write like lawyers. But sometimes, in their desire to teach us how to think like lawyers, they forget that clear and persuasive writing is an essential piece of practicing law. Plus, because they (and we) are so focused on substance, we forget that the form matters as well. In my practice, which involves a significant amount of writing (briefs, appeals and other documents), I have discovered the importance of both form and substance. 

Recently the ABA Young Lawyers Division published an article by Matthew Butterick addressing how the form of pleadings affects their efficacy. Mr. Butterick is the author of Typography for Lawyers and has a website by the same name (www.typographyforlawyers.com). The website lists many common typography mistakes (for example, the widespread belief that there should be two spaces after each sentence) and offers more advanced tips including font suggestions and the history of fonts (of interest for those of us who have used something other than Times New Roman, Arial and Courier). I was also pleased to see that my law firm already uses most of the best practices suggested by the author, and it was nice to have the confirmation that the thought that goes into formatting is worth the effort. 

While bad case law or unfavorable facts may present a challenge to the substance of your argument, you can’t control that. Instead, as my 1L writing professor said, “Control what you can. Proofread.”  You can also control the appearance of your briefs and pleadings, so take a moment to think about the look of them. First impressions matter.

Posted in Appeals, Law Firms, Commentary | Print | No Comments »

May 19, 2010 by Dan Siegel.

I have received two interesting points about cases in my newsletter. Marc Jacobs of Galfand Berger rightly notes that in MV Transportation v. WCAB, the Court indicated that an employer could file one utilization review petition for multiple physical therapists if the UR request names the doctor prescribing the physical therapy for review and not the physical therapists.

In addition, J. Brendan O’Brien of OBrien, Rulis, & Bochicchio, LLC noted that in Stancell v. WCAB, the Court also upheld the termination of benefits because Claimant made no complaints about the injured body part when asked by the IME physician or in her testimony, and it was not addressed by her expert.

Thanks to Brendan and Marc for their comments. 

Posted in Appellate Decisions, Workers' Compensation, Pennsylvania Case Law | Print | No Comments »

May 19, 2010 by Dan Siegel.

Our periodic newsletter, “A Summary of Recent Appellate Decisions from Pennsylvania and Other Jurisdictions,” is now available, featuring summaries of important decisions from the Pennsylvania Supreme, Superior and Commonwealth Courts, as well as the U.S. Supreme and other federal courts. The newsletter focuses on decisions relating to civil procedure, causes of action, automobile law and workers’ compensation, with a variety of other cases, etc. to review. Click here to read the newsletter.  To subscribe to the newsletter, click here to send an email.

Posted in New Jersey Case Law, Appellate Decisions, Appeals, Workers' Compensation, Pennsylvania Statutory Law, Personal Injury, Pennsylvania Case Law | Print | No Comments »

April 30, 2010 by Dan Siegel.

The Pennsylvania Supreme Court has affirmed in Commonwealth v. WCAB (Harvey), No. 14 EAP 2009 (April 29, 2010), that the use of actuarial data to calculate pension offsets for injured employees who also receive pension benefits from a defined benefit plan is permissible. Affirming the Commonwealth Court, Justice Saylor held that “actuarial assumptions and calculations may form the basis for a reasoned determination of the employer-funded component of a defined-benefit plan.” (emphasis supplied). In essence, the Court affirmed the procedure that has been used by the Commonwealth and others for many years to calculate these offsets, but the Court also affirmed the “practical necessity of expert opinion testimony in matters [such as this].”

As co-counsel for the injured worker, with Attorney Marla Joseph, I am disappointed that the Court did not require the use of specific calculations when, as in a case such as this, the numbers were available. But, by not foreclosing a claimant’s ability to challenge the calculations and the assumptions underlying them, injured workers will now have to employ actuaries to establish when improper and inaccurate calculations form the basis for a claimed offset — the Court stated: “Finally, we acknowledge Claimant’s concern with burden shifting, but, at least as a practical matter, some burden of going forward with contrary evidence generally ensues after a party bearing the initial burden puts forward a credible prima facie case.”

To read Harvey, click here.

Posted in Appeals, Workers' Compensation, Pennsylvania Statutory Law, Pennsylvania Case Law | Print | No Comments »

April 21, 2010 by Dan Siegel.

The Pennsylvania Supreme Court has released its latest report on medical malpractice filings and verdicts, and they show an ongoing decline in the number of lawsuits filed, and in the number of verdicts in favor of plaintiffs. To read the various reports (including those from prior years), click here.

Of note, the report confirms a 44 percent decrease in the number of medical malpractice cases filed since the Pennsylvania Supreme Court and the General Assembly adopted “reform measures” in 2003, including changes in where such cases may be filed, and the requirement that plaintiffs provide a Certificate of Merit with their filings. In addition, defendants continue to win most of these cases. The report indicates that 154 med mal cases went to trial in 2009, and 131 (85%) had defense verdicts.

Clearly, “reform” has worked in reducing the number of filings and the number of plaintiff verdicts. The key corollary question is whether doctors are in fact committing fewer errors or is the decrease merely a reflection of how hard it is to win these cases. The legal profession can’t answer that question, however.

Posted in Commentary, Pennsylvania Statutory Law | Print | No Comments »

April 10, 2010 by Dan Siegel.

On April 9, 2010, in Kelly v. Workers’ Compensation Appeal Board (US Airways Group, Inc.), the Pennsylvania Supreme Court ruled that a furlough allowance is not a “severance benefit” under Section 204(a) of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 71. Consequently, the Supreme Court - in a unanimous decision by Justice Baer - ruled that the employer was not entitled to a credit against the workers’ compensation payments for the furlough allowance it simultaneously paid to Claimant. The Court noted that, crucial to its analysis was the fact that the furlough allowance, like sick or vacation leave, is something to which the Claimant would have been entitled regardless whether he had been injured. Therefore, an employer of an employee injured at work cannot pay for the resulting disability with the employee’s sick or vacation pay; similarly, an employer cannot force the employee to bear the costs of his work-related injury by exhausting his accrued furlough allowance. This is a logical decision that is based squarely upon a straight analysis of the Pennsylvania Workers’ Compensation Act and the enabling regulations. Congratulations to attorney Larry Chaban for his success.

Posted in Appeals, Workers' Compensation | Print | No Comments »