The Axelrod Firm, PC

Happy Holidays!

2011-12-25T06:41:00.000-08:00

Click here to view the e-card we sent out on Friday.

The Axelrod Firm and The Beasley Firm Salvation Army Holiday Toy Drive

2011-12-18T08:15:00.000-08:00

The Axelrod Firm, PC* and The Beasley Firm are collecting new, unwrapped toys for The Salvation Army to distribute to families in need.

These are tough economic times. Many parents in the Greater Philadelphia area are out of work. Many have no money to buy their children gifts for the holidays. With your help, we can make a difference. We can ensure that as many children as possible experience the excitement of the holiday season by providing new toys to families in need. In 2010 alone, caring folks like you helped The Salvation Army provide over 13,000 children with new toys!

Here is how you can help:
Bring: New, unwrapped toys for children ages infant to 14 years old
Place: The bin in the lobby of The Beasley Building, 1125 Walnut Street, Philadelphia
Dates: November 14 – December 14, 2011
Times: Monday-Friday, 12 pm - 7 pm (excluding holidays)
(Five minute limited parking available to drop off toys)

Let’s share the spirit of the holidays and make this holiday season joyous for everyone!

The Salvation Army helps people around the world including by operating 2 emergency shelters right here in the Philadelphia area. While The Salvation Army operates thrift stores, none of the donated items will be sold. Everything will be donated directly to families in need.

*The Axelrod Firm is certified to be a woman-owned law firm by the Women’s Business Enterprise National Council (WBENC) and the Commonwealth of Pennsylvania.

Sheryl Axelrod Appointed Communications Director of the Philadelphia Bar Association Women in the Profession Newsletter

2011-12-18T07:05:00.000-08:00

At The Axelrod Firm, we are proud Sheryl Axelrod has been appointed Communications Director of the Philadelphia Bar Association Women in the Profession Newsletter. The Newsletter contains articles from extraordinary women. Below is the first issue as copied into The Axelrod Firm's Newsletter. The women who contributed the articles in it are: the Dean of Temple Beasley School of Law (JoAnne Epps), Judge Sandra Mazer Moss, two former Chancellors of the Bar Association (Jane Leslie Dalton and Sayde Ladov), the incoming Chancellor (Kathleen Wilkinson), a partner at Pepper Hamilton LLP (Maria Feeley), and a Fellow with Community Legal Services (Kathleen Creamer). We hope you enjoy it.

Click here to read The Philadelphia Bar Association's July 1, 2011 Women in the Profession Newsletter.

10 Tips For Effective Networking

2011-10-16T11:08:00.000-07:00

We all know what it’s like. We go to meetings. We meet a lot of people. We talk about our businesses and we leave wondering why we didn’t get business. The reason we didn’t get business there is because generally speaking, people don’t give business out based on a single conversation. People generally give business to people they know and like. This brings me to my first networking tip.

1. Don’t network – build relationships!

Business is generally not generated on the spot. It’s developed over time by people who have gotten to know you and trust you, so when you go to a networking function, your goal should not be to walk away with business. It should be to start a professional relationship.

2. Know your elevator speech.

To start the relationship, you need to explain why people should give you business. Work on being able to describe what you do in 30 seconds or less.

Now, it's okay to say something like, "I handle commercial cases," or, "I sell furniture," but you could really improve your explanation if you worked on not only getting across what you do, but suggesting in that same 30 seconds who should be giving you business and why.

What is the difference between saying what you do and describing why people should give you business? What you do doesn’t help me or show me why I should want your products or services. So, if you normally say something like, “My company sells high end furniture,” consider enhancing your message. Try saying something like, “We help companies improve their image by providing them with unique, high end furniture pieces tailored to their style.” My elevator speech? I help companies minimize their exposure in business, employment and general liability matters. With descriptions like this, you can explain not only what you do but who should give you business and why.

3. Begin with a positive attitude.

Attend networking functions when you are upbeat and looking forward to them. If you would prefer not to attend a networking event, or you are going to have to rush through it to get some place afterwards, don’t go. The point is to have fun, meet people and start developing relationships. That ties into my next tip.

4. Go to events you enjoy.

You are not networking. You are not doing something boring. You are building relationships. It should be fun and enjoyable. Go to events on topics you like. If you love wine, go to wine tastings. If you like reading, go to book clubs. Building your professional base of contacts, i.e., building a book of business, is not about going to every event you think you should and being bored out of your mind. It is about enjoying meeting people and starting to build professional relationships. You will have the best chance of doing so at events you feel comfortable attending, and want to attend, so go to them.

5. Attend events with objectives other than getting work.

If you are less focused on getting business from people, you are more likely to focus on starting relationships, so go to events with fun goals in mind. Go to a gallery opening to meet the artist. Go to a lecture to find someone to whom you can refer business. If you can, get the guest list in advance and decide who you want to meet.

Starting professional relationships means having solid, one-on-one conversations with people. Forget what you have been taught about meeting as many people as you can in a room. You want to try to meet at most 2-3 people at any one function -- not 10 and certainly not 50.

Be aware of your body language. If you are looking around for the next person you want to meet, you will send the message to the person you are talking to that you are not genuinely interested in talking to them. You should be happy you are getting the opportunity to speak with someone you wanted to meet. Focus on that person.

6. Be nice to everyone – not just those you want to impress.

You want to make a good impression. I have no doubt you will be especially friendly and cordial to the people you want to talk to, but be nice to everyone. People notice not only how you treat them; they notice how you treat others. If someone puts a glass of water down in front of you, thank them. Hold the door open for the person behind you and give them a smile. Show that you are a person worth starting to get to know.

7. Listen to what your contacts say.

When you start speaking to someone that you think you would like to get to know, speak less and listen more. Ask questions and pay attention to what you hear. Show a genuine interest in what your contacts do, how they got started, what made them go into what they do, who they are and in those they talk about such as their colleagues, family and friends.

Whatever you do, do not go for a “hard sell.” Do not ask them whether they need your services or what you need to do to get them to give you business. You are beginning a professional relationship. That starts with finding out about them. Begin to get to know them as people and professionals.

8. Follow up promptly and personally, and arrange to see your contacts again.

Once you’ve met someone you hoped you would, follow up with them. Send each contact you met a handwritten thank you note. Do not wait weeks to send it out. It sends the message the person did not matter much to you. Do so right away, preferably, by the next day.

When you write your note, make it personal. Include in your thank you something the person told you that you found especially funny, interesting or salient. Show that you were paying attention to them and that the conversation was important to you.

Make a point of arranging to see them again soon. See whether they will meet you for a cup of coffee or lunch. Make your offer enticing. Go some place fun and inviting. Enjoy beginning to get to know your contact.

9. Never underestimate the power of positivity.

If something a contact told you impressed you, tell them. If something about them impressed you, tell them. This is not about giving out false praise -- don’t. Be genuine, but there is probably something special about the person or you would not be so keen to meet them. If so, let them know.

10. Look for common ground.

As you are talking to your contacts, look for common interests, common values and common experiences. This is a person you should want to continue to get to know. Perhaps you both love watching professional tennis. Maybe you could take your contact to see the U.S. Open some day. Maybe you and your contact love murder mysteries. If there is a great murder mystery special on the Discovery Channel you know about, you can tell them they might want to watch it. These kinds of things begin to build your relationship.

If you follow these tips, you can build a professional network and grow your business.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history. She:
(1) helps companies minimize their exposure in business, employment and general liability matters;
(2) advises and fights for individuals and companies in disputes over money, contracts and/or real estate; and
(3) assists residential mortgage lenders in exercising their rights as creditors on defaulted mortgages.

Sheryl Axelrod Becomes President Of The Temple Law Alumni Association

2011-06-24T12:33:00.000-07:00

The Axelrod Firm is proud to announce that its founder, Sheryl Axelrod, was recently installed as President of the Temple Law Alumni Association (TLAA). She is the 4th woman to head the organization in its over 95 year history.

Each of the judges pictured above at the Temple Law Alumni Association's June 13, 2011 Annual Meeting in which Ms. Axelrod's presidency was formally launched is a graduate of the Temple University Beasley School of Law. The Dean of the Law School, JoAnne Epps, appears on the far left. Also present at the Annual Meeting was Special Guest Rudolph Garcia, Chancellor of the Philadelphia Bar Association.

Upcoming Event

Sheryl Axelrod will be presenting a Continuing Legal Education (CLE) course entitled "Employment Discrimination Issues" as part of the Employment Law Update held on July 27, 2011 in Philadelphia. You can look at the program details and register for the event.

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The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Philadelphia Zoning Relief – A Second Bite At The Apple

2011-06-24T12:31:00.000-07:00

You’re a Philadelphia developer and you just learned that the Philadelphia Zoning Board of Adjustment (ZBA) denied your request for variances for your pet project. You’ve been around the block enough to know that appeals are time-consuming, expensive, and, all too often, unsuccessful.

Good news. You may well have a do-over. A mulligan. A second bite at the apple.

Essentially, there are three ways to get one. First, there is a little-known opportunity to persuade the ZBA that there are “materially changed circumstances” entitling you to a waiver of the one-year waiting period rule. Second, you may appeal to the Philadelphia Court of Common Pleas and then, if no objector participates in the appeal, persuade the City Law Department attorney assigned to the case to agree to send the case back to the ZBA for a rehearing. Third, even in the face of opposition, often there is an opportunity on appeal to persuade the judge to send the case back to the ZBA for a new hearing. The right attorney can help you choose which of the choices may be appropriate for your situation and represent you in taking it.

Here is where it gets even better: Should you get a do over, experienced counsel may be able to assess the adjustments you have to make. Better still, before your case is called at the second hearing, your attorney can prepare you for the kinds of questions the ZBA will ask. In short, you might not only get another chance; you might wind up prepared to make the most of it.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Protecting Your Business: What You Need to Know About Non-Competition, Non-Solicitation And Confidentiality Agreements

2011-06-24T12:29:00.000-07:00

Your business wants to recruit talent. The only problem: so does your competition. In a recent poll, over 60% of responding employees said they had worked for two or more companies in the past five years. Almost 9% had worked for at least five employers. Employees move around. Unless your business is protected, when your employees go, they can take your former clients and use their knowledge of your confidential information, such as your profit margins, to outsell you.

Hire an experienced, skilled attorney to draft non-competition, non-solicitation and confidentiality agreements for your employees’ signatures. In Pennsylvania, the agreements have to be “reasonable” in scope and geography. The restrictions imposed by them must be “reasonably necessary” for the employer’s protection. The agreements have to be signed “incident to employment.” The meaning of each of these factors depends on the context in which your agreement is drafted. Look for a knowledgeable attorney who knows how to draft the agreements to make them most likely to be upheld.

Also, consult the attorney about setting up procedures to safeguard your company's confidential information. Courts recognize certain safeguards employers may use to protect their data. When we are talking about protecting your customer lists, profit margins, secret processes and procedures, you want to make sure you protect them in ways courts recognize as meaningful.

With the right lawyer, you can minimize the chance your employees will take your customers and proprietary information. You can focus on obtaining talent, and growing your business.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Oral Agreements Versus Written Ones: Why You Should Never Enter A Deal Without A Written Contract

2011-06-24T12:26:00.001-07:00

When a deal breaks down, the written contract governs. The contract is the keystone document that establishes the terms of the deal – the who, what, where, when, and how of your agreement. If there is a dispute, your contract will be the most important document considered. Incredibly, businesses sometimes forgo entering into written contracts, instead relying on handshakes to cement deals. While informal deals may seem convenient, a well drafted written contract, by clarifying the terms of a deal, offers protections no business should be without.

Among other things, a properly drafted written contract sets forth what each party’s rights are, what each party’s duties and obligations are, and how disputes are to be resolved. Written contracts thus inject a measure of certainty into deal making. They also offer reassurance when deals go sour.

A nifty term a contract should have is an integration clause. An integration clause makes clear that the contract – the written document – represents the entire deal. This is important because it prevents a party from using information beyond the written words in the agreement – such as pre- or post-deal communications – to change the terms of the agreement.

For example, consider an integration clause in a contract that specifies that late delivery excuses the need for payment. In the face of such a contract, arguments from your supplier like, “You promised my company could supply product late and still get paid,” hold little weight. If the fact you supposedly said so wasn't written in the contract, then pursuant to the integration clause, whatever you supposedly said is outside of your deal. What matters is what was in writing. These are the kinds of protections a written contract can offer and none of them exist if your deal is merely oral.

A properly drafted written contract should be a prerequisite to any significant deal. Retain an attorney capable of drafting one. Look for an experienced lawyer who can clearly lay out the terms of your deal and draft it to provide protections for your business. A business should never find itself fighting a lawsuit over a broken oral agreement when a written contract could have clarified the parties’ obligations and avoided the need to go to court.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The EEOC Weighs In On Laws Concerning The Use Of Employees' Genetic Information

2011-06-24T12:24:00.001-07:00

On January 13, 2010, we let you know about a new discrimination law affecting companies with 15 or more employees. The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from obtaining an employee's genetic information, and the genetic information of the employee’s family members. The genetic information can include both their current medical conditions and their medical histories. GINA also normally prohibits employers from using such information in making employment decisions.

On the other hand, there are laws which permit employers to obtain medical information about their employees. Where an employee requests an accommodation under the Americans with Disabilities Act (ADA), the employer may ask for medical documentation supporting the disability and request. Something similar is true where an employee requests leave under the Family Medical Leave Act (FMLA): the employer may to ask for documentation of the family member’s illness. In addition, GINA itself permits employers to learn medical information under certain circumstances, such as where employees offer the information in conversation. For instance, an employer may learn that an employee’s father had a stroke where an employee says so, unasked.

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC), the federal administrative body which hears employee discrimination claims, weighed in on GINA, and considered other circumstances under which employers may lawfully come across genetic information. In this age of social media popularity, an employee who “friends” an employer on Facebook and posts about their health, or the health of their family members, entitles the employer to notice. What GINA prohibits is an employer conducting internet searches targeted at discovering such information. For instance, an employer may not perform internet searches aimed at finding out whether an employee has a history of breast cancer, or whether the employee has relatives who do. That said, the EEOC regulations permit employers to conduct internet searches of publicly available information to find out general information about an employee’s background and job history.

GINA and the EEOC’s regulations are very fact specific. When in doubt about how to implement them, whether they have been violated, or if faced with a claim based on their alleged violation, retain an experienced employment discrimination attorney to provide advice and representation. The last thing one should do is guess what the law requires.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Legal Documents You Must Have

2011-06-24T12:22:00.000-07:00

Just about everyone knows what a will is. Of course, many of us do not have one. We say, “I’ll get around to it”. A will becomes effective when you die. There are also documents that can be relied upon if you can no longer handle your affairs while you are living. Everyone one needs them.

Suppose your elderly aunt becomes incapacitated, physically unable to get around, and is somewhat forgetful. She has no children. You, her beloved niece, have been watching out for her for years. Does that mean you can write checks to pay her bills? Does that mean you can make decisions affecting her medical care? Does that mean you can sign her in to a nursing home? The short answer is no.

Your aunt needs an Asset Management Durable General Power of Attorney. It’s a mouthful. We will refer to it as a P/A. In that document, your aunt will name an agent someone she trusts, someone who will take care of her assets only for her benefit. The P/A will contain many powers: the ability to write checks for her, enter her safe deposit box, make her investments, sell her investments, borrow money for her, make gifts for her, and lots more. Every P/A does not necessarily contain the same powers as every other P/A. Your aunt and her attorney should speak until the attorney understands your aunt’s goals, the person she wants to name as the agent, the powers she wants to give to the agent and the powers she wants to retain.

The second document your aunt needs is a health care document. We call it an Advance Health Care Declaration / Health Care Power of Attorney -- another mouthful. This document combines what is referred to as a Living Will and a Health Care P/A. You need the latter due to government regulations which otherwise prohibit the release of medical information to those other than the patient. The Declaration enables your aunt to tell her agent whether she wants certain medical care. It will answer whether she wants medical providers to keep her alive no matter what, to let her die without herculean efforts, or, as is usually the case, somewhere in between.

If your aunt waits too long to have these documents prepared, there could well be the need to petition the court for the appointment of a legal guardian. There are two types of guardians – of a person and of the estate. This procedure is far more expensive and cumbersome than having properly prepared asset and health care P/As.

Last, your aunt should have a will. Your aunt wants to pass on some of her assets to her heirs. The preparation of a will and the appropriate P/As will also go along way to helping your aunt reach that goal.

Everyone needs these P/As, whether they are married, living together, single, with or without children. We should all be prepared.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Want To Collect Your Money After You Settle? Bankruptcy Proof Your Settlement Agreements

2011-06-24T12:20:00.000-07:00

When you hear a case settled, it means the parties entered into a settlement agreement. The agreement should be put in writing, with its terms clearly spelled out. Where the plaintiff (the party which brought the lawsuit) is going to be paid by the other side (called the defendant), the plaintiff's attorney can – in certain circumstances, and where the defendant is willing – attempt to draft a bankruptcy proof settlement agreement, i.e., one which calls for no payments to be wiped out should the defendant file for bankruptcy.

Statistics show why you may want to try for a bankruptcy proof settlement. Bankruptcy filings are up 27% over the prior year, according to a news release from the Administrative Office of the U.S. Courts. This is the highest it has ever been since the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect.

Once a person files bankruptcy, their creditors -- the folks to whom they owe money -- are left with one recourse: they can go after the monies in the bankruptcy. They cannot look for repayment in another court. Each of the creditors will be fighting to get their share of the debtor's monies. You want to make sure your settlement puts you in line ahead of as many creditors as possible.

The following are some steps you can take to do so:

1. If possible, structure your settlement so that the funds used for payments are borrowed from a third-party;

2. Where applicable, have the defendant admit in the settlement agreement to specific allegations of fraud or willful and malicious injury. If you can get that kind of language in the agreement, the settlement monies should be considered beyond the reach of a bankruptcy;

3. Have the settlement agreement cite to the amount of the original claim, or include a “springing” provision, so there is no dispute regarding the size of the claim, should the defendant file for bankruptcy; and

4. As part of the settlement agreement, call for a waiver of the automatic stay. The automatic stay is what bars a creditor from suing a debtor in a court other than a bankruptcy court. Calling for it to be waived will help you get out of the confines of the defendant's bankruptcy, so you can go after your settlement monies in another court.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Impact Of The New Pleading Standard, And Its Greater Examination

2011-06-24T12:18:00.000-07:00

This supplements our prior e-newsletter on the amount of detail required in federal court complaints, the documents filed at the beginning of lawsuits. The Supreme Court´s Ashcroft v. Iqbal decision required complaints to contain greater detail. Under Iqbal, a plaintiff (the party bringing a lawsuit) must set out sufficient facts to show that it is not merely "possible" the defendant acted unlawfully; it is "plausible".

The decision had a profound impact. According to an empirical study published by the American University Law Review in February 2010, since Iqbal, the odds have more than doubled that a court will grant a motion to dismiss a complaint, albeit with leave to amend it (meaning to change or fix it).

There are 13 federal courts of appeals below the Supreme Court. Each is numbered and covers a region, such as our Third Circuit whose territory covers Pennsylvania, New Jersey and Delaware. The federal trial courts in each region, known as district courts, before whom cases begin, must follow the law as interpreted by their courts of appeals. The courts of appeals, in turn, must follow the law as interpreted by the Supreme Court, and thus Iqbal. Doing so requires them to interpret Iqbal.

In Iqbal, the Supreme Court instructed that "judicial experience" and "common sense" should be used to determine whether a complaint states a plausible claim. In Fowler v. UPMC Shadyside, the Third Circuit warned our district courts not to rely too greatly upon either judicial experience or common sense. As the Third Circuit stated its interpretation of Iqbal: "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts alleged is improbable and that a recovery is very remote and unlikely."

Iqbal and its progeny (meaning the cases following it, such as Fowler) demonstrate the importance of retaining a knowledgeable lawyer. Your attorney should be familiar with these decisions, and should bring that knowledge to bear in either drafting your complaint, or in preparing a motion to dismiss a complaint brought by the other side.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

What Should I Do If It Looks Like I’m Heading Towards A Lawsuit?

2011-06-24T12:16:00.000-07:00

Rule number one: Do not provide your future opponents with information they can use against you. You’ve probably heard on television: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” They are part of the warnings police officers must provide in criminal investigations before suspects’ interrogations. The words apply with equal force in non-criminal cases, in which no such warnings need be given.

If it looks like a lawsuit is on the horizon, do not give your adversaries information they can use against you. Don’t justify what you did, to them or anyone. Don’t even talk about what you did with anyone but your lawyer, let alone why. Doing so will only limit your options. In the lawsuit, you will be tied to the reason you gave, and forced to explain it. Other good reasons you may have won’t be the ones you claimed explained your actions.

Also, don’t help your opponents obtain witnesses by spreading information about what occurred to other people. Anyone you speak to other than your lawyer may be called as a witness against you. The only person you should discuss your case with is your attorney.

Rule number two: If you can follow Rule number one, then gather information. While anything you say can be used against you, the reverse is also true; anything your opponents say you can use against them, so if you can refrain from offering information about what you did, try to find out from them what they did and why. If you are in email contact with your adversaries, email them questions. Don’t load your questions with anger; you’re far less likely to get a response. Keep your questions to the point. An example might be, “Why did you stop making payments?” Your opponents’ written explanations may be your best weapons against them in the lawsuit.

If you can’t gather information in writing, you can try over the telephone, though verbal explanations are easier to dispute. People can claim that wasn’t what they said. Do not try to record conversations to get around the problem. In Pennsylvania, taping verbal communications without the other side’s consent is illegal.

Last, and this is critical, don’t tell anyone what you and your lawyer say to each other. The law deems those communications privileged. That means neither you nor your lawyer may be forced to reveal what you say to each other unless: (1) you share those communications with others; or (2) you sue your lawyer. The last thing you want is to be forced to take the stand to testify about your conversations with your lawyer, or to have your lawyer be forced to testify about them, so don’t discuss them.

In short, don’t talk about your case to anyone but your lawyer, don’t share your conversations with your lawyer with anyone and if you can refrain from providing information, gather it.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Our News!

2011-06-24T12:12:00.000-07:00

The Axelrod Firm is proud to announce that in the Spring of this year, the Chancellor of the Philadelphia Bar Association appointed Sheryl Axelrod to a three-year term on the Commission on Judicial Selection and Retention. This is the Bar Association committee charged with the honor and duty of ensuring that the public is well informed about those running to be judges, and those judges running for re-election.

The Chancellor also appointed her Co-Chair of the Bar's Law Practice Management Committee. As the Chancellor wrote, "The Committee will focus on issues related to law practice management, such as technology and the business of running a firm. In this economy, it is critical."

The Axelrod Firm is committed to giving back to the community, including through its involvement in the Bar Association. Sheryl Axelrod was previously elected to a three-year term on the Executive Committee of the Young Lawyers Division of the Bar Association (the YLD). During her YLD tenure, she primarily dedicated her time to children including by co-chairing the Michael K. Smith Oratorical Contest for school children in grades 4 through 8. She spent 5 years coaching high school mock trial teams and continues to act as a scoring judge in mock trial competitions.

In 2009, Ms. Axelrod was awarded the Temple Law Alumni Association's Distinguished Service Award.

The Axelrod Firm also believes in philanthropy. This year, The Axelrod Firm donated $1,000 each to the Temple University Beasley School of Law and The Salvation Army to further their missions of excellence in teaching, scholarship and service, and of Doing The Most Good.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

What You Need To Know About Carryover Basis And The Estate Tax Repeal

2011-06-24T12:10:00.000-07:00

Let’s begin with basis. Prior to January 1, 2010, when folks died, all of their assets took on their date-of-death value for purposes of income tax capital gains and losses. That is called step-up in basis. Consider the example of someone who purchased shares of XYZ Corp in l980 for $25 per share, and died in 2009 when the stock was worth $100 per share. If the estate sold the stock for $105 per share, the gain would be $5 per share ($105 less $100), rather than $80 a share ($105 minus $25). Since January 1, 2010, when the same stock is sold for the same amount, the gain will be calculated at $80 per share. Thus, for income tax purposes, the date-of-death value is now irrelevant. The cost basis is relevant; that is carryover basis. There is a method by which your estate can acquire the step-up in basis for a significant amount of assets. However, you must have an accurate record of your cost basis as a starting point to figure it out.

As the result of a law enacted nine years ago, there is no estate tax this year. However, the same law provides that the estate tax will come back next year with a $1 million exemption. If you and your spouse have significantly more than $1 million in assets and your present will provides for distribution by way of “marital”, “residual” or “credit shelter shares” language, you should consult your attorney to make sure your will takes into account the current status of the estate tax, particularly as the tax will be returning on January 1, 2011 with the lower exemption amount.

To stir the pot even more, Congress may well make further changes that affect estate planning. The changes will probably affect both the exemption amount and the carryover basis. In short, the laws are quickly changing so you should consult your attorney to make sure your will and overall estate planning are up to date.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

May You Be Fired For No Reason? The Answer May Shock You.

2011-06-24T12:07:00.001-07:00

Pennsylvania is an “employment-at-will” state. This means that unless there is an employment contract, an employee may be fired at any time, for any reason or for no reason at all. The employer does not have to have “cause”.

There are a few narrow exceptions to this rule. Federal law prohibits discrimination in the workplace based on an employee’s gender, disability, race, color, religion, national origin, age and/or pregnancy. The Family and Medical Leave Act also protects those taking time off for family and/or medical reasons. The Pennsylvania Human Relations Act, a Pennsylvania state law, makes it illegal to discriminate on those grounds, and also based on an employee’s willingness to participate in an abortion or sterilization procedure.

Unless the firing was due to one of these legally recognized forms of discrimination, the employee will generally have no valid basis to sue. This is true even where the employee’s work performance was outstanding.

What’s more, the limitations on an employer’s general right to fire employees at will are narrow. For instance, as discussed in The Axelrod Firm e-newsletter at http://www.theaxelrodfirm.com/articles.php?action=15, the United States Supreme Court ruled in Gross v. FBL Financial Services, Inc. that an employer may fire employees on account of their age, so long as age is not the sole reason it does so. In February of this year, in Noecker v. Reading Hospital, the court in the Eastern District of Pennsylvania ruled that an employer was legally entitled to fire an employee whose pregnancy made her unable to perform duties required of her job. She had not been with her employer long enough to qualify for pregnancy leave under the Family and Medical Leave Act. The law would otherwise have protected her.

While an employee may bring a wrongful termination suit, doing so requires proving the firing violated public policy. That public policy must be found in the Constitution, regulations, legislation or case law. Courts interpret this basis for bringing suit narrowly. For instance, in Weaver v. Harpster, a Pennsylvania state appellate court, the Superior Court, considered a wrongful termination suit. The woman who brought the action claimed she resigned due to sexual harassment. She could not bring suit under the Pennsylvania Human Relations Act as she worked for a company with less than 4 employees, and the Act applies only to larger companies. She claimed she should still be entitled to pursue a wrongful termination claim. There is a clear public policy against sexual harassment, she reasoned. However, the court ruled for her employer, reasoning that the law was specifically designed to keep smaller employers outside of its reach.

In summary, employment discrimination is a narrow field. Most firings are legal -- the law recognizes few as unlawful.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Managers Can Be Held Individually Liable For Family Medical Leave Act Violations

2011-06-24T12:06:00.000-07:00

On February 24, 2010, a federal judge in the Eastern District of Pennsylvania, the federal trial court located in Philadelphia, held that managers could be individually responsible (in legal terms, liable) for violations of the Family and Medical Leave Act (FMLA). The FMLA requires employers to allow employees to take a specified amount of time off for family and/or medical reasons. The law normally applies when an employee is having a child, a family member is ill, or an employee is having surgery.

In Narodetsky v. Cardone Industries, Inc., the employee (Narodetsky) had worked at Cardone, a global supplier of automotive parts, as a tool designer for approximately 12 years. He found out that he needed surgery and requested leave from work under the FMLA. According to his Complaint, immediately after his request, Cardone’s President and CEO, its Human Resources Manager, Human Resources Director, a Human Resources representative, and the Plant Manager decided to perform a forensic search on his computer. The search turned up a pornographic email that he had sent to a co-worker about a year earlier. As a result of the email obtained in this fashion, he was called into a meeting and summarily fired.

While normally in such suits, the employer is the sole party sued, Narodetsky sued not only Cardone, but each of the company officials involved, from the company President to the Plant Manager. Narodetsky claimed that the individuals “participated in the forensic search of his computer with the goal of finding a reason to justify his termination because he had requested FMLA leave.”

The individuals who had been sued (called the individual defendants) filed a motion to dismiss the lawsuit. They claimed they could not be held personally liable for FMLA violations.

The trial judge disagreed. He ruled that the individual defendants could indeed be held legally liable for violating FMLA because Narodetsky alleged in his Complaint that each had the power to terminate him, and that each was involved in his termination.

Following Narodetsky, managers should consult an attorney before denying FMLA requests. Where there is a question whether an employee is entitled to family or medical leave, counsel can provide a reasoned opinion in accordance with the law. The last thing a company should do is leave its managers exposed to personal liability for deciding these issues on their own.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Law Firms Are Not Immune From Attorney Age Discrimination Suits: The EEOC Goes After A Firm

2011-06-24T12:03:00.001-07:00

On January 28, 2010, the United States Equal Employment Opportunity Commission (EEOC) sued New York firm Kelley Drye & Warren for age discrimination. The suit concerns the firm’s policy of purportedly requiring its partners to relinquish equity and management authority at age 70 and thereafter, to receive compensation only on an annual performance bonus basis. According to the Complaint, the annual performance bonuses are discretionary. The practices purportedly result in senior lawyers being undercompensated as compared to their more junior counterparts.

Among the relief sought, the EEOC is asking Kelley Drye to not only end the alleged discrimination, but to compensate the affected lawyers for the monies they lost and to provide equal employment opportunities for its employees who are 40 years old and older. The EEOC is demanding that Kelley Drye pay for the lawyers’ claimed pain, suffering and humiliation, and pay monies as punishment (so called “punitive damages”) for the purportedly offending behavior.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Employers Beware: A Supreme Court Case Reveals The Dangers of Going Into Workplace Investigations Without Legal Counsel

2011-06-24T12:02:00.000-07:00

A unanimous United States Supreme Court decision highlights how critical it is for employers to seek legal advice when considering conducting internal workplace investigations. Questioned employees may inform investigators that they are being harassed on the job. Employees asserting such claims will now be subject to the same protections from retaliation by employers as those who file lawsuits for harassment. In fact, the Court’s decision leaves employers open to retaliation claims any time they fire employees who tell investigators about unlawful employment practices.

In Crawford v. Metropolitan Government of Nashville, the Metro School District conducted a workplace investigation into rumors that its Employee Relations Director, Hughes, was sexually harassing employees. Crawford, a long-time employee, informed the investigator that Hughes sexually harassed her. Metro took no disciplinary action against Hughes, and fired Crawford for alleged embezzlement.

Crawford filed a retaliation claim against Metro, claiming she was fired for reporting Hughes’ sexual harassment. In legal terms, she asserted that her employer retaliated against her for opposing an unlawful employment practice. The trial and intermediate appellate courts ruled in Metro’s favor, finding that Crawford could not claim retaliation protection because she did not initiate a complaint. She had merely answered an investigator’s questions in an already pending internal investigation.

The Supreme Court reversed. The justices concluded that an employee who tells an investigator about unlawful workplace harassment is protected from the employer’s retaliation. More broadly, the Court suggested that retaliation protection extends to any employee who speaks out about discrimination during a workplace investigation.

The Crawford decision underscores the importance of consulting an experienced employment attorney before, during and after workplace investigations. Before an investigation, counsel can advise whether an investigation should be conducted in the first place. If there is to be an investigation, counsel can frame the issues to be addressed and the questions to be asked. During an investigation, as data is gathered, counsel can review the data, analyze it and provide guidance as to how the employer should best proceed.

If Metro had sought legal advice before firing Crawford, Metro may well have not fired her. (Counsel could also have suggested how best to deal with Hughes.)

After an investigation, counsel can inform an employer of its array of options in dealing with its workforce, and make recommendations as to which to choose. With the right counsel by an employer’s side, many lawsuits can be avoided altogether

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Superior Court Reduces Awards In Motor Vehicle Accidents By The Amount Of Underinsured Benefits Received

2011-06-24T11:59:00.000-07:00

The Pennsylvania Superior Court recently examined payouts individuals injured in automobile accidents receive. In Pennsylvania, drivers are required by law to be insured. Of course, there are drivers who violate the law, and drivers who obey the law but carry only the minimum amount of coverage. When drivers carry underinsured motorist (UIM) coverage, they protect themselves against having to pay expenses that are not covered by the drivers who hit them. The injured drivers with such coverage can collect UIM monies and then sue the drivers who hit them for the full scope of their damages including their pain and suffering.

In Pusl v. Means, the Superior Court considered how to balance, on the one hand, monies paid by insurance companies providing injured drivers with UIM coverage, against, on the other, monies juries award the drivers for all of their damages. The issue before the court was whether to reduce the jury verdicts by the UIM benefits already paid.

The case arose out of a car accident in which Means negligently drove a G&L Welding & Machine Company vehicle into Pusl, who then brought suit against Means and G&L to recover for her injuries. Prior to trial, Pusl settled her claims against her UIM carrier for $75,000 in benefits. Pennsylvania evidentiary rules keep this kind of information from the jury, which awarded Pusl $100,000.

After the trial, Means and G&L filed a motion to change (in legal terms “mold”) the jury verdict to reflect Pusl’s receipt of the $75,000 in UIM benefits. The trial court granted the motion and molded her award to $25,000. She appealed the decision, as it effectively lowered her recovery by the amount of UIM monies she had received, but the Superior Court affirmed. The Superior Court reasoned that the molding prevented Pusl from obtaining a windfall: the double recovery of her already paid UIM monies.

After Pusl, injured drivers who receive UIM monies should think hard before taking their personal injury cases to verdict. They can expect their verdicts to be reduced by the amount of UIM monies they have been paid.

This underscores the importance of hiring the right legal counsel. An injured driver should look for an attorney capable of assessing the dollar value of their case. Equally importantly, the attorney should be familiar with the latest decisions that may impact the case’s value, such as Pusl. Parties sued in motor vehicle cases should look for attorneys who have these same skill sets, who are also familiar with the procedures to reduce verdicts in accordance with the law. The right attorney will raise Pusl and related issues early in the case, so as to reach accord on the case’s potential settlement value and plan case strategy.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

New Discrimination Law Prohibits Using Genetic Information In Making Employment Decisions

2011-06-24T11:55:00.000-07:00

As of November 21, 2009, employers had to begin complying with the Genetic Information Nondiscrimination Act (GINA). GINA is divided into two titles. Title I prohibits insurance carriers from using genetic information to discriminate against the individuals covered under their plans. Title II is tailored to employers and prohibits the use of an employee’s genetic information in making employment decisions. This e-newsletter concerns Title II.

GINA broadly defines genetic information as genetic tests of an individual or the individual’s family members. Genetic information under GINA includes the presence of a disease or disorder in the individual’s family members. Put more colloquially, genetic information covered under GINA includes an individual’s entire medical history and that of the individual’s family members. Further, an individual’s family members under GINA include their dependents and any other relative out to the fourth degree, as the term is defined in the statute.

Title II makes it illegal to use an individual’s genetic information in making an employment decision. Covered employment decisions include hiring and firing, decisions about the terms of employment, the segregation of employees, limiting an employee’s opportunities, and limiting an employee’s benefits. For example, if an employer learns that a job applicant’s mother had breast cancer, the employer cannot consider that fact (or the applicant’s increased risk of suffering a similar fate), in deciding whether to hire the applicant. Such discrimination is permissible only if the employer can show that the information was job-related and consistent with a business necessity.

GINA goes further and makes it illegal for an employer to request, require, or purchase an employee or covered family member’s genetic information. The statute provides a few exceptions to this prohibition. An employer may inadvertently acquire this information, such as through innocent workplace conversation. Among a few other permissible exceptions, the employer may also acquire the information to comply with the Americans with Disabilities Act, the Family Medical Leave Act, or other similar laws.

Employers with 15 or more employees should make themselves familiar with these new restrictions. More importantly, they should retain an experienced employment discrimination attorney to assist them in complying with them. Compliance with GINA will require updating the employer’s posters, workplace practices and personnel manual.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

It Is The First Opinion Of Justice Sotomayor, And It Will Have Sizeable Consequences.

2011-06-24T11:51:00.000-07:00

There was much fanfare surrounding Sonia Sotomayor’s nomination to the Supreme Court of the United States. The Supreme Court’s first opinion of the term, authored on December 8, 2009 by Justice Sotomayor in Mohawk Industries Inc. v. Carpenter, received no attention in comparison. It was issued almost in silence, but it portends to have a serious impact upon one of the most important protections the law affords clients.

You may have heard the phrase “the attorney-client privilege”. It refers to the concept that when you seek a lawyer’s advice, no one can force you or your lawyer to reveal your confidential communications with each other. It is the foundation of the attorney-client relationship. Clients can feel comfortable communicating openly with their attorneys; the attorneys may not tell what they say.

Prior to Mohawk, federal appellate courts were divided over whether trial court decisions on the scope of information not covered by the privilege were immediately appealable. The Third Circuit, the federal appellate court in this region, permitted immediate appellate review. Pennsylvania state courts did, too. In this region, then, if a judge ordered a party to produce what it claimed was a privileged document (a letter, for instance, from the party to his attorney), the party could hold onto the document and appeal. Mohawk took away the right in federal courts to that immediate appeal. Pennsylvania state courts may follow their federal counterparts and also eliminate the right of immediate appellate review. That issue has not yet been decided.

One thing is certain: Mohawk makes trial judge decisions on what is not privileged far more grave. Once privileged information is turned over, the harm is done; the opposing party and its counsel know the privileged information. No later reversal will change that fact.

Mohawk underscores the importance of selecting the right legal counsel. Your attorney should be familiar with legal precedents. You should look for a lawyer who will not only help you reach your desired outcome, but will assert the strongest case law in favor of protecting your privileged communications. The best way to avoid getting caught in the Mohawk conundrum is to win the battle at the trial court level, having your attorney convince the trial judge your confidential communications are indeed privileged.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Axelrod Firm's David Versus Goliath Commercial Defense Victory Is Published

2011-06-24T11:48:00.000-07:00

The Axelrod Firm represented the defendant, a single individual, against the plaintiff, a large nursing company, Visiting Nurse Group, Inc. "Pennsylvania Jury Verdict Review & Analysis" provides professional commentary and analysis on the most significant verdicts in Pennsylvania state and federal courts. This excerpt is taken from page 14 of the October 2009 issue:

DEFENDANT’S VERDICT

Alleged breach of fiduciary duty in renting space to health care competitor – Claimed breach of non-compete agreement.

Philadelphia County, PA

The plaintiff, Visiting Nurse Group, Inc. (“VNG”), brought this action against one of its former owners, alleging a breach of fiduciary duty, as well as a purported breach of a non-compete agreement. The defendant denied that his actions in renting space to another health care provider, ACT Home Health Services, Inc. (“ACT”), breached any fiduciary duty or caused the plaintiff to sustain any damages. The defense also denied any breach of a non-compete clause which was contained in a buy-out agreement signed with the plaintiff after the space-renting issue arose and likewise denied that any actions alleged to have violated the non-compete clause caused the plaintiff to sustain any damages. The tenant, ACT, as well as one of its owners, a nurse who had been employed by the plaintiff, settled the plaintiff’s claims prior to trial.

Plaintiff, VNG, is a provider of nursing care services. The plaintiff alleged that the defendant’s leasing of space to an alleged competitor, ACT, at a time when the defendant held an ownership interest in the plaintiff company, was a breach of the defendant’s fiduciary duty to the plaintiff VNG. The plaintiff alleged a loss of patients, nurses and monies as a result of the defendant’s actions.

Once the plaintiff learned that the defendant was leasing space to an alleged competitor, the plaintiff and defendant entered into a buy-out agreement in which the plaintiff purchased the defendant’s shares of VNG. The buy-out agreement included a noncompete clause which the plaintiff claimed the defendant breached by purportedly assisting ACT.

The defendant argued that he acted merely as a landlord to ACT and that there was no evidence that ACT paid any more than market value rent, or received any advantage from its lease with the defendant. The defense also argued that the plaintiff could not establish any breach of fiduciary duty, breach of the non-compete clause or that the plaintiff suffered any financial loss as a result of any of the defendant’s actions.

The case was tried as a bench trial with a verdict for the defendant on all counts.

REFERENCE

Visiting Nurse Group, Inc. vs. Gaudite. Case no. 06-
11-01804; Judge Albert W. Sheppard, Jr., 7-15-09.
Attorney for defendant: Sheryl L. Axelrod of The
Axelrod Firm in Philadelphia, PA.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Can I Make The Other Side Pay My Attorneys’ Fees? Not Often, But You May Have An Advantage If You Plan Ahead.

2011-06-22T13:52:00.000-07:00

This post is the second in a two-part series. The first addressed how cases are valued. This addresses when attorneys’ fees are recoverable. The answer in Pennsylvania is rarely, but there are circumstances where you can recover your legal fees by statute. There are even circumstances where statutes don't call for counsel fees to be paid but you can collect them anyway, if you plan ahead.

In Pennsylvania, attorneys’ fees are recoverable where they are provided for by statute, by law or by contract.

A. By statute

There are a handful of situations in which counsel fees are called for by statute. For instance, statutes authorize the winning party to collect attorneys’ fees in a number of contexts involving discrimination claims. Title VII calls for legal fees to be paid in certain gender discrimination matters. The Americans with Disabilities Act provides for attorneys’ fees to be paid for discrimination against individuals with disabilities, and the Age Discrimination Act provides for attorneys’ fees to be paid in cases involving age discrimination. Contractors and subcontractors who go unpaid may collect counsel fees under the Contractor and Subcontractor Payment Act, and legal fees may be called for in Workers’ Compensation cases under the Workers’ Compensation Act.

B. By law

Case law recognizes that judges have the discretion to award attorneys’ fees. Where a party has proceeded in bad faith or merely to harass its opponent, for instance, it may be ordered to pay the other side for the abuse. Judges rarely exercise the authority to impose counsel fees, however. They usually do so only in the most egregious cases.

C. By contract

Courts generally uphold contracts that call for the winning party to be awarded counsel fees. Exorbitant fees do not have to be paid. Fees are recoverable by contract to the extent they are reasonable, and so long as the contract is not too one sided.

In conclusion, attorneys’ fees are rarely recoverable, but contracts can properly be drafted to call for counsel fees. The drafter has to be careful to not make the contract too one sided. A good rule of thumb is to have your attorney include a provision that in a dispute, the prevailing party is entitled to the collection of reasonable attorneys’ fees. Such provisions have been upheld as not too one sided; courts reason that either side could prevail. Also, choose the right attorney. You want to find someone who will write an agreement that accomplishes what you want, but be fair enough to pass muster.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

What’s My Case Worth? A Guide To Case Valuation

2011-06-22T13:13:00.000-07:00

“What’s my case worth?” and “Can I make the other side pay my legal bills?” are probably the two most commonly asked questions of trial attorneys. This post answers the first question. The next will answer the second.

The value of a case is based on two factors: liability and damages.

A. Liability

Liability is about whether you have a winning case. If you were hit by a car while sitting in a parked vehicle, you have a winning case. In legal parlance, you can prove liability, you can show that the other driver was at fault. If you are bringing an employment discrimination case and you can prove you were fired because of your race, you can prove liability. If, on the other hand, you have no evidence of discrimination, you won’t be able to prevail. In legal terms, you won’t be able to establish liability.

B. Damages

The concept of damages speaks to the total monetary value of your losses, regardless of liability. In a personal injury case, your damages are not just your medical bills; your damages include the value, in dollars, of all the pain and suffering the accident caused you, plus your present and future lost earnings and earning capacity. If you got in an accident and were horribly injured, your damages may be astronomical. If you walked away unharmed, they won’t be.

In a commercial case, like a breach of contract action, the non-breaching party does not suffer much in the way of monetary damages if, for instance, it immediately finds another company to fulfill the deal. On the other hand, if a company purchases defective computer programs which corrupt its data, its damages may be enormous.

C. Assessing Value

Now, it is of course true that you need both liability and damages. You need liability because without it, you can’t win. You need monetary damages because without them, you may win but you won’t recover any money.

In most cases, however, liability and damages are unclear. Whether you have a winning case generally boils down to a question of who is believed, you or your opponent. If you think about it, that makes sense. In most motor vehicle cases, the drivers give differing versions of the accident, each claiming the other was at fault. In most commercial cases, each party claims the other breached the deal. Who wins depends on who is believed.

Damages are often not clear cut, either. In personal injury cases, for instance, the monetary value of pain and suffering is subject to opinion.

The real expertise in evaluating cases lies in the ability to appreciate the range of values a case may have, and in being able to use that information to design case strategy. The right attorney will be able to do both.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Dividing Line Between Harassment Based On Gender And That Based On Sexual Orientation: The Two May Be Intertwined, But Only One Is Protected

2011-06-22T13:05:00.000-07:00

In the workplace, Title VII, a series of federal laws, prohibits so called gender stereotyping, the harassment of employees who don't act like those of their gender. However, Title VII is not recognized to prohibit harassment based on an employee's sexual orientation. This leaves open the question of what to do when a homosexual male employee is harassed for not acting like a stereotypical man. In legal terms, the question is whether his harassment is covered as gender-based harassment, or whether it falls outside of the scope of Title VII as a claim for sexual orientation-based harassment. That was the issue this region’s federal appellate court decided on August 28, 2009 in Prowel v. Wise Business Forms Inc.

In actuality, the court was confronted with conflicting evidence. On the one hand, there was evidence Mr. Prowel was harassed because he had a high voice, moved in an effeminate manner, crossed his legs and filed his nails. That evidence tended to show that the harassment was gender-based, i.e., that he was harassed as a result of so called gender stereotyping, for not acting in accordance with behavior stereotypically associated with men. On the other hand, there was evidence that Mr. Prowel was harassed due to his sexual orientation. He was repeatedly called derogatory names associated with homosexuals and taunted for his homosexuality.

The Third Circuit Court of Appeals decided that Mr. Prowel had put forward evidence of gender stereotyping. Therefore, the court ruled, his case should have been put to a jury to decide whether the harassment was due to his gender or to his sexual orientation. In so ruling, the Third Circuit reversed the trial court which had granted judgment to his employer Wise Business Forms. Anyone, regardless of sexual orientation, the Third Circuit explained, may assert a gender stereotyping claim, as long as they have evidence that the harassment occurred because of their gender.

Prowel provides a lesson in pleading and practice. Those wanting to bring sexual harassment claims are cautioned to draft their claims to clearly show that the harassment was in fact gender based. Throughout the course of their case, it will also be critical for them to gather evidence proving that the harassment was based on their gender.

Employers should consider Prowel a warning. Although Title VII does not cover harassment based on sexual orientation, Prowel shows that the line between that kind of harassment and gender stereotyping can be very fine. Before being faced with a sexual harassment claim, employers are well advised to draft a clear anti-discrimination policy covering not only gender-based harassment in general but also harassment based on gender stereotyping and an individual’s sexual orientation. The policy should be distributed as part of an employee manual, employees who violate the policy should be appropriately disciplined and diversity programs should be put in place. The best way to defeat a sexual harassment claim is to take steps to prevent one from being brought

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

A Reminder From The Bench: Proving A Hostile Work Environment Claim Is Not Easy

2011-06-22T13:00:00.000-07:00

On August 14, 2009, the United States Court of Appeals for the Third Circuit, this region’s federal appellate court, kept the bar for proving hostile work environment claims very, very high. “Occasional insults ... are not enough,” the court reiterated in Brooks v. CBS Radio, Inc. To prove a hostile work environment claim, the discrimination must be so “severe” or “pervasive” that it permeates the workplace and changes the very nature of the job.

Even being told by a supervisor to read a book containing blatantly racist passages, the court decided, is not enough. In Brooks, the sole African-American account executive at CBS Radio, Inc. quit after being told by his supervisor to read “Dress For Success”. More specifically, Mr. Brooks left as a result of being offended by a number of the book’s shocking passages including the following:

“The two groups who have the most problems with their appearances are black men and Hispanic men. It is unfortunate but true that our society has conditioned us to look upon members of both groups as belonging to the lower classes, and no matter how high a minority individual rises in status or achievement, he is going to have some difficulty being identified by his success rather than his background. But clothing can help.”

Despite the book’s content, the court ruled that its distribution did not create a hostile work environment for Mr. Brooks. There was no evidence Mr. Brook’s supervisor ever read the book. Not only that, the court decided that since there was no hostile work environment, Mr. Brooks had no need to quit so he could not recover monies from CBS Radio for his departure.

Brooks should make people who believe they work in hostile environments think twice before quitting. They are well advised to seek an attorney's counsel. Together with their attorney, they should step back and reflect about the issue the way a court will: is the discrimination limited to occasional insults, they should ask, or are the insults so severe or pervasive that they infect the very nature of the job? If it’s the latter, before leaving, they should complain about it. They should write out a list of their grievances, date and make a copy of it and hand it to the Human Resources Department (or if there is none, to their supervisors), specifying what precisely the problems are. They should then give their employer the opportunity to rectify the situation. Mr. Brooks did not give his supervisor this chance, and the Third Circuit held that against him.

Brooks notwithstanding, employers should always be vigilant in identifying and eradicating discrimination in the workplace. Diversity should not just be tolerated; it should be welcomed and appreciated. If there is discrimination but it is not severe or pervasive, an employer may win a hostile work environment claim, but the employee may bring other discrimination claims, and the employee will in all likelihood find those easier to prove. Beyond claim prevention, keeping discrimination out of the workplace helps ensure that every employee can be successful. That, in turn, helps a company perform at its peak.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

How Much Is Enough? The Supreme Court Sets The Standard For Making A Claim

2011-06-22T12:53:00.000-07:00

On May 18, 2009, the Supreme Court issued a controversial decision with far-reaching implications for cases filed in federal court. Ashcroft v. Iqbal is about the amount of detail required in a complaint, a document filed at the beginning of a lawsuit. A complaint sets out the claims the party bringing the lawsuit, known as the plaintiff, has against the party being sued, known as the defendant.

In Bell Atlantic Corp. v. Twombly, a case decided not long before Iqbal, the Supreme Court considered the amount of information complaints in antitrust cases must have. In Iqbal, the Supreme Court, split 5 justices to 4, broadened the scope of Twombly to all complaints filed in federal court. To survive a motion to dismiss, a plaintiff must now provide enough facts to show that, if he proves his case, it is not just “possible” the defendant acted unlawfully; it is “plausible”.

For plaintiffs, Iqbal heightens the amount of information they will need to plead. Now before ever conducting depositions, asking written questions or seeking documents, a plaintiff in federal court is going to need to know enough about his case to draft a complaint showing it is plausible there in fact is a case.

The new pleading requirement does not absolve those who bring suit from the honesty and candor requirements inherent in court proceedings. A plaintiff must verify his complaint under penalty of perjury, and his counsel must have a reasonable basis to assert the allegations contained in it. Moreover, allegations contained in a complaint, like those in all other pleadings, are considered admissions by the party asserting them. Those that turn out to be false may become fodder for the plaintiff’s cross-examination. Before filing suit then, thoughtful consideration should be given not only to whether there is enough detail in the complaint to satisfy Iqbal, but also to ensure there is a solid basis for believing the detail is in fact true.

In federal court cases, the impact of Iqbal upon defense counsel, the attorneys who defend parties sued in court, is straightforward: they should scrutinize complaints. Motions to dismiss should be filed whenever a defendant's conduct appears merely to be “possibly” unlawful. In short, defense counsel should hold plaintiffs to the burden Iqbal creates.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Taking Measures To Diversify A Workforce Is Now Risky Business: The Supreme Court Rules That Correcting Discrimination Can Itself Be Discriminatory

2011-06-22T12:32:00.000-07:00

In the latest of a series of controversial decisions, the Supreme Court, split 5 justices to 4, sounded an unlikely warning to employers: take measures to diversify your workforce at your peril. Ricci v. Destefano concerns Title VII of the Civil Rights Act which prohibits employment discrimination on the basis of race, color, religion, sex or national origin. The Act makes two types of discrimination unlawful: intentional discrimination ("disparate treatment"), and non-racially motivated behavior which disproportionately adversely impacts minorities ("disparate impact"). Ricci goes to the heart of the tension between the two types of discrimination, and leaves employers to walk a tightrope between them.

Ricci, decided on June 29, 2009, concerned New Haven, Connecticut’s exam for firefighters seeking promotions. While there was no intention to skew the results, white candidates outperformed their minority counterparts. Both sides then threatened to sue the City under Title VII. Minority firefighters who would be denied promotions threatened to sue if the City kept the test results.
They claimed there was an unlawful disparate impact, i.e., that the test results illegally negatively impacted them in comparison to white firefighters. White firefighters eligible for promotions also threatened suit. They claimed throwing out the test results would amount to disparate treatment, i.e., unlawfully denying them promotions based on their race. Caught in the crosshairs of the two groups, the City tossed out the test results and the white firefighters sued.

The Supreme Court decided that an employer may not correct a racial disparity in those receiving promotions unless that disparity is so great there is “a strong basis in evidence” the employer would be liable for an unlawful disparate impact. As the Supreme Court put it: “We conclude that race-based action like the City's [demotion of white firefighters] is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”

The Ricci ruling effectively puts employers in a catch-22 situation. On the one hand, if non-minorities are promoted in disparate numbers, employers may be liable to minority workers for the resulting disparate impact they suffer. On the other hand, if employers try to correct the disparity, they may be liable to non-minorities for disparate treatment. Employers are well advised to consult with counsel if they have any concerns about the racial composition of their workforce. Under the standard announced by the Supreme Court, it is now harder to change it, even to correct racial disparities.

Ricci also affects employees. It will be tougher for minorities to convince employers to take corrective action to diversify those being promoted. Employers may be loathe to risk liability for disparate treatment for doing so.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Supreme Court Decides That Age May Factor Into An Employer's Decision To Take Action Against An Employee

2011-06-22T12:27:00.000-07:00

The Supreme Court -- sharply divided 5 justices to 4 -- recently published a controversial ruling in the field of employment discrimination law. Gross v. FBL Financial Services, Inc. dealt with the Age Discrimination in Employment Act of 1967 (ADEA) which makes it unlawful for an employer to take action against an employee “because of such individual's age”. On June 18, 2009 in Gross, the majority of justices decided that an employee cannot win a claim under the ADEA with proof that age was a factor motivating the employer to take action; the employee must prove that age was the determinative factor.

In other types of employment discrimination cases – cases, for instance, for race or gender discrimination – there is no need to prove that discrimination was the motivating factor. Employees need only show that discrimination was a factor. The Supreme Court’s decision means that an employer may now take action against an employee based on age as long as other considerations also factor into the decision.

The Gross ruling should not change the way employers conduct their affairs. Congress may step in and reverse the decision. A law could be passed permitting age discrimination to be proven with evidence that age was considered. An employer is also always better off fighting an age discrimination claim where there has in fact not been any age discrimination.

Employees asserting age discrimination claims, on the other hand, will need to alter their behavior. They are now going to have to charge that age was the reason their employers took action against them; it will not be sufficient for them to claim that age factored into the decision. The Gross ruling will also make it tougher for employees to prove age discrimination claims. Employers may now defend the claims by asserting that age was merely a factor taken into consideration; before Gross, on the other hand, any taking of age into consideration was enough to prove age discrimination.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

The Breadth Of Ledbetter Begins To Be Examined, And Compensation Is The Key

2011-06-22T12:20:00.000-07:00

The Lilly Ledbetter Fair Pay Act was the first bill President Obama signed into law upon taking the oath of office. The Act gives an employee paid comparatively lesser wages, benefits or other compensation as a result of discrimination additional time to file a claim. In fact, literally every time an employee is handed a disproportionately low paycheck, Ledbetter calls for the employee to be given another 300 days to do so.

Ledbetter changed the landscape for employers. The passing of 300 days (nearly a year) without a claim after new pay scales offers employers no security now; claims may be brought indefinitely, as long as they are filed within 300 days after a lesser paycheck.

A recent court decision that would appear to limit Ledbetter’s breadth will likely offer employees insight into how to extend it. On May 21, 2009 in Rowland v. Certainteed Corp., the United States District Court for the Eastern District of Pennsylvania declined to extend Ledbetter to a failure to promote claim. Ms. Rowland claimed that she was denied promotions due to her gender. She did not file a claim until 300 days after a number of the denials occurred. While she claimed Ledbetter extended her time to bring these claims, the court found that Ledbetter did not apply and tossed out the claims as time-barred because (in the words of the court’s opinion), “Rowland's failure to promote claim is not based on a discriminatory compensation claim”.

While the decision would appear to benefit employers, employees denied promotions more than 300 days before filing claims will presumably now consider whether the denials were intertwined with discriminatory compensation plans. The employer’s refusal to promote, the claim may allege, was based on a discriminatory compensation structure tied to promotions and designed to keep those of a certain race, color, religion, sex or national origin from receiving their just compensation. If such claims prevail, the 300 day time period for bringing failure to promote claims will start over every time an employee is paid.

Employers should of course always have counsel review proposed structural compensation changes prior to their implementation. However, employers are well advised to have counsel regularly review their existing compensation structures. Rowland teaches that no matter how long the structures have been in place, they remain subject to attack

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Assessing Your Company’s Exposure In An Employment Discrimination Case

2011-06-22T12:14:00.000-07:00

A recent Pennsylvania case highlights the substantial liabilities employers face in navigating the complexities of employment discrimination law and offers insight into how employers can limit their exposure. A person who wins an employment discrimination case can collect, among other funds, monies for back pay and front pay. Back pay is the difference between what an employee was paid and the amount the employee should have been paid, had there been no discrimination. Courts may order an employer to pay an employee back all underpaid monies from up to 2 years before the employee’s discrimination charge all the way up to the time of trial. Front pay damages can be even greater. Front pay consists of all monies the employee is expected to lose before finding a substantially equivalent position.

On April 23, 2009 in Donlin v. Philips Lighting North America Corp., the United States Court of Appeals for the Third Circuit found that a temporary warehouse employee who worked for an offending company for less than a year before being denied a permanent position could properly be awarded 10 years’ worth of front pay damages amounting to nearly $400,000.

Employers are always well advised to review their hiring, promotion and discharge practices with counsel to minimize the risk of discriminatory practices occurring. In light of the court’s decision, employers should in particular make sure that these same practices are just as carefully utilized in deciding upon the applications of temporary employees for permanent positions. As shown in Donlin, one discriminatory decision can be extremely costly. Finally, where an employment discrimination claim is brought, before digging in for a litigation battle, consideration should be given to whether the employee should be given the position sought or whether settlement negotiations should be quickly pursued, to limit the company’s exposure for the employee’s lost back pay and front pay.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.

Fighting Back: What To Do When Your Insurance Company Denies A Claim

2011-06-20T14:36:00.000-07:00

It happens all too often. You buy an insurance policy to cover your business. You pay your premiums like clockwork, year after year. Then one day, your business gets sued. You immediately submit the claim to your carrier and you figure they’ll cover it. They’ll hire a lawyer at their cost (after you pay any deductible), and the lawyer will defend your company. After all, that’s why you’ve been paying all those premiums, to get that coverage. However, a few weeks later, a letter comes in the mail. Your carrier’s rejected the claim and now you’re stuck having to pay to fight the lawsuit. What should you do? Fight back and here’s how.

1. Size up the battleground

Review your carrier’s claim rejection letter and cross check it against your insurance policy. Your policy is your insurance carrier’s contract with you, and your carrier is bound by its terms. The letter will explain your carrier’s reasons for denying coverage, and will refer to specific policy language. When you cross check the letter against the policy, don’t just look at the policy provisions your carrier cites. Read the entire policy, see how its terms are defined and get a handle on the scope of coverage -- which acts and damages the policy covers, and which it does not.

In Pennsylvania, unless it is absolutely clear that your carrier does not have to provide your business with coverage, your carrier generally has to provide coverage. Courts interpret contracts against their drafters. In the case of insurance policies, the drafters are virtually always the insurance carriers.
When courts interpret a policy against the carrier, they interpret ambiguous terms -- provisions that can mean more than one thing -- in favor of providing the insured, your business, with coverage. So if the policy could be construed to call for your carrier to defend the lawsuit, your policy will be construed to require your carrier to do so. In short, courts will read the policy in the way most likely to provide your business with coverage.

Don’t let the carrier confuse you by claiming that the policy does not require it to indemnify a claim. We are talking about whether the policy requires the defense of a claim, whether the policy calls for the carrier to hire a lawyer to defend your company. Whether your carrier has to pay a judgment that could be entered against your business (indemnification) is a separate question.

2. Strike back

If you conclude that indeed, your policy could reasonably be construed to require your company’s defense, write your carrier back. Set out why the policy requires your carrier to defend the lawsuit, quoting specific policy provisions which call for coverage.

It can be an act of “bad faith” for a carrier to refuse to defend a claim covered by a policy, and if your business wins a bad faith claim against a carrier, the carrier may have to pay your company not only compensatory damages, but punitive damages. Compensatory damages are the monies your business actually incurs from the having to defend the claim (the legal fees and costs of the suit). Punitive damages go further. They are imposed to punish a carrier so that in the future, it will be more likely to defend such a claim rather than forcing its insured to defend it and have to sue to get reimbursed. If you truly believe your carrier’s refusal to defend your company is being made in bad faith, tell them so in the letter but be prepared to back that up with a claim against your carrier should it refuse to budge.

3. Don’t take your eye off the clock

Whatever you do, do not let the time your company has to file a response to the lawsuit run out. In Pennsylvania courts, you may be able to file either an Answer to the Complaint or a pleading to have the Complaint stricken. Call the opposing party’s attorney. Do not mention anything about the merit (or lack of merit) of the lawsuit, but say that you are trying to get your insurance carrier to hire you a lawyer and ask for a reasonable extension of time to Answer the Complaint or otherwise plead. If the lawyer grants you the extension, confirm it in writing. This way, you will retain the ability to have the Complaint stricken while you try to get your carrier to hire your company a lawyer. In the meantime, don’t wait. Look for a lawyer to represent your business in the lawsuit -- preferably, one who will also help you fight your carrier.

The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.