Juris Magazine- October, 1976

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uris Duquesne University School of Law October, 1976

Chicken Delight ............... . . . . .. 3

By Olin E. Williams Preparation For Trial . ....... . . .. ... . . 7

By William S. Schweers SEC Rulemaking .................. .. 10

By Carole B. Dolson

FROM THE EDITOR"S DESK i

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THE DUQUESNE LEGAL COMMUNITY AND ITS NEWSMAGAZINE Juris begins its fifth year of publication as Duquesn Law School's short feature newsmagazine. During this period it has served as .a liaison among the numerous elements lhat constItute the Duquesne legal community. Juris reaches our law students, alumni, faculty an~ other members of the bar and bench . It extends Illto the legal and business community, providing an audience far beyond the academic walls of Rockwell Hall. Continually increasing its circulalion, the gr atest asset of Juris is its readership, all of whom represent potential contributors . This year's Editorial Board recognizes this rich resource and encourages participation from our growing ranks . Through the infusion of new ideas in the feature secLion of the newsmagazine, Juris can continue to provide the best possible forum for discussion of legal and social issues of contemporary concern.

In the past, students at the Law School have not fulfilled their potential as regular contributor of Juris 's feature articles . Their major impact has remained at the editorial level and through contributions in other sections of the n wsmagazine. Yet, for the great majority of law students at Duquesne, there are few realistic chances for the dissemination of their ideas outside of the academic setting.

Although most of the law student's time is devoted to reading and analyzing cases, some electives , including Environmental Law, Municipal Corporations, Labor Law Seminar, and Legal Medicine, have provided opportunities for student research into areas that are of general interest. Also clinical education programs now provide students with new in ights int.o the legal process. A natural outgrowth of these reseru'ch papers and clinical ex peri2

ences could be appropriately designed featur articles for inclusion in Juris, The Editorial Board encourages ollr classmates to share their experiences beyond the classroom and clinical situations.

Hopefully . professors will encourage students to explore the possibility of sharing valuable research with a wider audience.

Many of the readers of Juris who are not law students are law graduates of Duquesne. Alumni can channel their professional, civic, and academic interests into the Duquesne community by writing an article for publication. Juri keeps a constant vigil on the numerous accomplishments of Duquesne law alumni , and reports them regulru'ly within its pages. In addition, alumni interviews erve a twofold purpose of a quainting the general readership with distinguished graduates, while at the same time providing an opportunity for personal contact between law stud nts and alumni.

Our alumni, however, should also consider Juris a place where comments concerning mat.ter of com mon interest may be shared with their colleagues .

The shori feature article represents a vehicle appropliate for commentary on innumerable topics.

The alumni hould not can ider their role in Juris limited to the reporting of alumni happenings.

Members of the law school faculty at Duquesne have contributed numerous feature ru-t.icles to Juris. Each of the full-time and adjunct faculty have developed a special camp tence in one or more areas of the law, and some are recognized experts in given fields . Juris hopes to continue to draw upon this smail, but influential s groent of om community, Juris presents the faculty witb an opportunity to communicate simultaneously with students of the past and present.

The Juris readership consists of a heterogeneous group of individuals with divers interests who are bound together by their participation in the process of legal education at Duquesne. Th members of this unique legal fraternity have various degrees of academic training and legal knowledge, and come from diverse backgrounds and experience . While some are just beginning their legal education, others have risen to become judges, senior partners, and community lead 1's.

Every individual brings a different p rspective that could serve to enlighten the entire body . Although most are geographically dispersed, Juris helps to solidify a common bond. We may not all become personally acquainted, but Juris can provide an opportunity for students , alumni, and faculty to become more aware of each other's interests and ideas .

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Delight

By Olin E. Williams Any rational person who has been visually assaulted by the neon jungle of fast food shops which cluster at our city gates, or by the many fast food TV commercials touting their stereotyped wares (and who bas not?) will be astounded to learn that our judiciary has found it necessary to interfere with the common law of the marketplace in order to protect us from the evils of monopoly in this pullulating industry. That is, unless be is a lawyer. And even a lawyer, inured as h.e may be to judicial surprises, should be justified in being astonished to learn that, in a business so exemplary of competition, the courts have felt obliged to condemn contracts merely because of Lhe manner in which the £ranchisor has sought to obtain his compensation. He may be more inclined to rely on the Late and esteemed Mr. Justice Holmes' dictum' that the most enlightened judicial policy is Lo let people manage their own business in their own way , unless the ground for interference is very clear¡ and to believe it is the law Lhat, as stated by the late Sir George JesseI' [T] here is one thing more than any other which public policy requires, is that men of full age and competent understanding shall have the utmost liberty of contracting, and that contracts when entered into freely and voluntarily , shall be good and shall be en forced by cour!.,; of justice.

The federal bureaucracy has also, YOll may be surprised to learn, detected this alleged evil and has moved against its source, the fast food franchise, a term that generally refers to an immunity from a restriction or a special privilege granted to some individual or group, and as used here refers to a trademark license usually issued in substantial numbers and including full direcLions and a patLern for supplying a service, or merchandising a trademarked product; in the present case, some fast-food item. He who would become a franchisee , and our metropOlitan newspapers are filled with offers to franchise, should beware because, apart from the well-known , well -run, and well-established franchises, there are to be had those which are, plainly speaking , frauds. But aside from some notoriety given by Better Business Bureaus and the public-service operations of our television stations, these latter incipient frauds have not commanded that attention of our Justice Department which one would think they deserve. Justice, eiLher the Department or the courts, has saved its Lhunder for the franchise agreement in which it has discerned oddly enough , a threat to free enterprise.

H has condemned or sought to proscribe by Lhe imposition of per sa antitrust interdictions, franchising schemes (1) that would compensate the franchisor by any other means than percentage royalty payments, (2) that would accompany Lhe bare trademark license with any required supply and acceptance of accompanying products or services , or (3) that would require the franchisee to deal exclusively in the franchisor's product. [t would be footless to inquire inLo the real causes underlying our court's or Justice's punitive reaction to these clauses. As to the courts, it may be a residuum of the populist dismay at the demise of the family-owned grocery sLore as chain stores 1. Dr. Miles M edica.l Co. v. ,10 hn D . Pa r i, & So n< Co., 220 U.S . 373

(1911) 2. Printing Co. u. Sampso n , Jâ&#x20AC;˘ . R. 19 Eq . 462 quo te d In Diam o n d Matc i! Co. u. Roeber, 13 N . E. 419 . 106 N . Y. 473 (1887)

developed, or a response to the ingenuities of advocates defending clients who have breached their franchise contracts and seek to avoid Lheir obligations. As Lo Justice or Lhe Federal Trade Commission , it may be symptomatic of their apparently instinctive reaction to conspicuously successful business enterprises.

The beginnings of trademark law are to be found in the common law; and in our tradition the right in , and existence of, trademarks are based on use, - a use which identifies the source and hence the likelihood of uniform qualIty of a product. Based on the Commerce clause of tbe Constitution, Congress has long regulaled the use in interstate commerce, and hence the registration , of trademarks; but government cannot granl a trademark ; it exists solely as an indicium of a product or service in use in commerce. A trademark right does not exist apart from the product or service it identifies, and cannot be transferred in gross or apart from a transfer of the good will it symbolizes. Origi. nally the right to use another's trademark could not be licensed at all. The right to license trademarks developed along with the requirement that the licensor actually and actively control the quality of the trademarked product, thus to protect Lhe public which shares wiLh the trademark owner's proprietary right the right to rely on the uniform quality of a trademarked product. When, for example, a trademark owner licensed General Motors to use its mark "VENTURA" on Pontiacs without any provision for quality control or supervision by the Lrademark owner, the trademark rights were subsequently held Lo be "void and unenforceable. " 3 3. Po o l e u. Kit Mfll. Co ., 184. USPQ D .C. N.D. Tex as (1974)

Editor's Note: Olin E. Williams is an Adjunct Professor at Duquesne Universily School or Law, teaching Inlellectual Properly. He received a B.S. Degree from Virginia Military Ins titu le, and a J.D. Degree {rom Duquesne. He is currently O{ Counsel for the Robert Yeager law firm .

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Modern fast Cood franchising emphasized the third above-mentioned function and creates an entire atmosphere around a trademark, repeating its motif in accessories to the trademarked product and surrounding the sale of the product with a building and signs of distinctive design, waitresses in distinctive uniforms, etc. My teenaged son can identify the golden arches of McDonald's the instant they appear (in a camouflage of competitors) on the di tant horizon. Mr. Justice FrankCurter in the Mishawalla case ' expressed it more elegantly: The creation of a market through an established symbol implies that people float on a psychological current engendered by the various advertising devices which give a trademark its potency . (Emphasis added) With such awesome support and with the understanding the prestigious Second Circuit Court of Appeals in the Susser case" said : The true tying item was rath r the Carvel trad mark, whose growing repute as intended to help the little band (400 franchis es) of Carvel dealers swim a bit faster lhan their numerous rivals up the highly competitive stream.

As business became more complex a whole range of products manufactured by a diversified company could bear the same trademark or indeed, two or three trademarks, and the actual company name could remain anonymous; a multitude of licensees could produce the qualitycontrolled product; and a multitude of licensees, "franchisees," could be , and are, operating separately owned but identically identified busine es. A franchise thus became a trademark license with attendant righls to operate a business and benefit from the good will of the trademark .'

Franchises have their value to incipient franchisees in the market appeal tilat a well advertised, instantly recognizable, entirely uniform market product, has for the general public.

It has been said s that a trademark performs a threefold function: (1) to indicate origin; (2) to guarantee; and (3) to advertise and sell.

ParentheticallY speaking, it might be said that recently franchises have assumed a new function, where the trademark right that is licensed appears Lo be the mere cachet resident in the name. For example, 58 licensees of the couturier Sainl-Laurent have the right to manufacture and sell 128 Saint· Laurent products under the aint-Laurent trademark; 111 franchised Rive Gauche boutiques sell Saint-Laurent products; and ,45,000,000 wholesale, of men's fashions were sold in the United Slates alone in the last 12 months.' Whether purchasers rely on the SaintLaurent house of couture actually to control the quality of this vast flow of merchandise or whether the trademark is merely suggestive of elegance by association is a matter of conjecture.

4 . Franchised Store of N ew York. In c. u. IVlnlc r. 157 USPQ 466 CCA 2 (1968) 5 . Spritlllficid Fire afld Marin" Ins. Co. u. Fo,,,,ders Fire and Marine Ins. Co. , 1I5 F .Supp. 787, 99 USPQ 38, N.D . Cal . S . D .

1953 6 . N.Y. Times, Sunday, August 8, 1976

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A trademark owner-franchisor and his lawyer might well have felt secure in imposing conditions upon its franchisee that would surround its trademark with uniform I various advertising devices, " arches, oraJlge roofs colonial cupolas, etc., that might give its franchisees an edge over its competitors. But as this sad tale reveals, client and lawyer would have been grossly optimistiC. The courts have confused in the cases patents and copy· rights that are grants of the government "to promote the us fu] arts," with trademarks that ar not. A patent or copyright owner can by means of his grant enjOin or License the making, using or selling of patented or copyrighted arlicles and misuse of his grant to effect a restrajnt of trade is a violation of the anti·tmst laws. This mle is not, I submit, applicable to the licensing of trademarks, which are not government grants, and do not prevent anyone from making, using or selllng any product or service provided he does not confuse the public by using another's trademark or one confusingly similar to another' mark .

In the following review of the outstanding cases we will find that confusion concerning the inherent qualities of trademarks, as contrasted to patents and copyrights, and a failure to look at the facts of the fast food business, have begun to create dangerous precedents which can seriously hamper the t:ranchising business. A law student learns soon and forgets at his peril that precedent is established by expressing new opinions, often respecting new subjed matter, and by being followed; and not necessarily by the logic of its argument or purity of its doctrin s. Therefore, I would not suggest that Siegel el al. v. Chicken Delight, [nco et at., 448 F.2d 43, 171 USPQ 269 CCA 9 (1971), lhe main subject of our inquiry, is not capable of being imporLant precedent; but I would like to consider that decision commonly referred to as Chic/len Delight in the light of such statutory guidance and case law as we have available, and if I have less than appreciative remarks to make about Chicken DeLight do not confuse iL wiLh 'Planked Chicken" that famous Jack Bogut recipe 9 that calls for one dead chicken and one oak tree (for the planks), heating the 7. Misi1awaha Rubber & Wollin Mfg . Co. v. 5.5. Kresge Co., 316 U.S. 203 U. S. Sup . Ct. 1943 8 . Suss r el al. v. arucl Corporation e t at .. 332 F . 2d 505, 141 USPQ 609, CCA 2 (1969) 9. Th.ree Rivers Cookbook - copyright by Child Health AssociUion of Sewickley , Inc. An excellent cookbook revealing the • crets of the best chef. in Pittsbu.rgh and not to be judged by the puerile efforts of olle Bogu t who has a way of sneaking into the serious works of others as he just now has into this One.

chicken between planks to nambe, calling the Fire Depart· ment, throwing away the chicken, and eating the planks.

As to statutory guidance, Section 35 of the Lanham Act (15 U .S.C. 1117) provides: When a violation of any right of the registrant of a mark registered in the Patent Office shall have been stablished in any civil action arising under this Act, the plaintiff shall be entitled .. . to recover (1) de· fendant's profits , (2) any damages sustained by the plaintiff, and (3) the costs of any action .

Injunctive relief is available (Section 34) also. A franchise is by definition an immunity from these restrictions. It is not within the scope of this article to define the separate proofs required to establish liability under the several antitrust laws, but illustrative of applicable statutory law is Section 13 of the Sherman Act (15 U.S.C.A. Sec. 1): Every contract ... in restraint of trade or commerce among th s v tal states ... is declared to be illegal. and S ction 14 of the Clayton Act (15 U.S.C.A. Sec. 14) : It shall be unlawful for an y person engaged in com· merce . . . to make a sale or contract for sale of goods . . . for u. e, consumption or resale .. . on th condi· tion ... that the . . . purchas r thereof shall not use or deal in the goods ... of a competitor . . . of the seller, where the effect of such . . . sale or contract . . . may be to lessen competition or create a monopoly in any line of commerce .

Many of the leading cases in trademark law provide guidance , of course, to an understanding of the law of franchise , but only a few, preceding Ch icken Delight, dealt with those aspects of trademark law that are peculiar to franchise licenSing; and, most of these upheld the franchise. [n at least one of these , the Baker case, tile equities appear to have been so on the side of plaintiff that this "tie·in" arrangement was held legal and reasonable in spite of some quite unwarranted apprehensions on the part of the court.

Th background of the Baker easel 0 is one of a de· fendant trading on the goodwill of plaintiff's well known trademark Simmons, for mattresses, by means of fraud and deliberate appropriation. Defendant sought to escape from the consequences of his illegal acts by contending that plaintit'f violated the antitmsL laws by tying in the sale of signs to motels advertising that the motels supplied Simmons "Beautyrest" mattresses. ObviollSly an owner could not obtain a sign unless he was equipped wilh "Beautyr st" mattresses. Under Section 33(b) (7) of the Lanham Act, 15 U.S.C. Sec. 1115(b) (7) a violation or the antitrust laws will serve as an absolute defense to plaintiff's suit on its trademark . '1'hat this advertising arrangement could be considered a 'Lie·in", even though the court properly rejected such a contention , shows how dangerous, ill·understood and amorphous the doctrine had become. To use a patented salt dispenser salt tablets must be pur· chased, II - the one requires the other; but Simmons maltresses require no advertising sign. The signs were but an attractiv accessory in a sales program. The court relu tanto ly concluded that the arrangement was tecllnically a 'tie·in" but not "an illegal one." It is regrettable that the court did not restrict the definition of ' tie·in" to that between products wherein one demands the use of the other and where the offender reqltires that he also supply that needed other product.

Another case which preceded Chicken Delight was Sussel' v. Carvel" where the great and commercially

sophisticated Second Circuit Court of Appeals faced headon a food·franchise situation and refused to remand the case respecting an allegation of "tie·in" holding that by law no illegal "tie·i n" existed. Here nin plaintiffs, former and present individual operators of Carvel ice cream franchise outl ts, alleged violation of antitrust laws and sought triple damages. 'fhe three sitting judges concurred on all other pOints, but the Chief Judge disagreed with his brothers concerning the alleged antitrust "tie·in" and delivered an opinion , writing (or the majority in part, and dissenting in part, that is not only thereby confUsing but contains more questionable generalizations than an essay by Eric Hoffer.

The Chief Judge citing five Supreme Court cases holding tying arrangements illegal under the antitrust laws (not one of which concerned a trademark) then wrote that he could find little to distinguish between the economic power generated by a patent or copyright on the one hand and a trademark on Lhe other, apparenUy not realizing the salient difference that a patent controls a product or method, and a copyright the copyrighted item , whereas a trademark merely identifies a source and controls the use of no product or service. To support his odd conclusion, the Chief Judge erroneously stated: In all three cases, Congress has granted a statu tory monopoly . . ..

Congress grants patents and copyrights; it cannot grant a trademark. 'fhe majority of the circuit court held that Carvel did not erect an unreasonable tie·in arrangement since it was not shown that it had 'SUfficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a ' not insubstantial' amounL of commerce is affected ." lJ At tim of trial there were 250 Carvel dealers out of a total of 125 ,000 ice cream outlets; the "tie·in" cones sold to dealers cost less than if each dealer had bought them ; and im· portantly the court recognized that while specifications would enable franchisees to meet quality standards without having to purchase tied products from the franchisor , they wOltld not make control feasible . The court thus held that the franchise agreement tying the Carvel tradename and mark to ice cream , ice cream cones and other supplies was pro·competitive.

13 . Nortllem l'aciflc u. Un iled States , 356 U.S . J (1958)

10. Baller II. imm o n ds Co .• 134 USPQ 266, eCA 1 (1962) 11 . lnlemational Sa il Co. u. United Siaies. 332 U.S . 392, 75 U$PQ 12.

184(1947) 'usse r u. Carlle l Corporat ion e l 01 .• 3 32 F . 2d 505, 141 U$PQ 609 CCA 2 (1964)

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The district court in the Chicken Delight " case held that a trademark license granted on condition that licensee purchase other products (paper products, cookers, and food mixes) used by him in the exercise of his licensed franchise violates Section 1 of the Sherman Act and even determined (reversed above) that damages could not be reduced by a reasonable value assessed for the license, the damages being an overcharge on products supplied , this overcharge being intended to pay for the license. No other royalty was charged.

The facts upon which this slarLling opinion was based are summed up in th appellate opinion, I S which uphe ld the district court except ru to the ma tter of damages: Over its eigh teen years of existence , Chicken Delight has licensed several hundred franchises to operate home delivery and pick-up food stores. II charged its franchisees no franchise fee or royalties. Instead in exchange for the license granting the franchisees the right to assume its identity and adopt its business methods and to prepare and market certain food products under its franchise , Chicken Delight required its franchisees to purchase a specified number of cookers and fryers and to purchase certain packaging supplies exclusively from Chicken Delight.

The prices fixed for these purchases were higher than , and included a percentage markup which exceeded that of comparable products sold by competing suppliers.

To a layman in such matters, the above arrangement would seem eminently fair. The franchisee is provided with just what he wants and needs; a trademark license and all the appurtenances that pennit him to compete with all the other highly identified fast food outlets. He need not pay a fixed royalty , but one automatically adjusted to the amount of business he is able to do. Nor does he (nor the ult imate consumer) have to pay the hidden costs for extensive investigation and control. Without such investigation of " several hundred" franchisees , how could the franchisor have any assurance that his royalties are based on honest figures or that proper equipment and ingredjents are being employed to at least give basic assurance of a unifonn product?

Bu t the court citing as authority the Susser and Baker cases (supra) nei ther of which found an antitrust violation, determined that a tie-in arrangement existed. The court almost found the key to the artificial per se situation in which it found itseLf when it said that the courts must look to the function of an aggregation to detennine whether there is one product or there are several tied-in items in the franchise. One can appreciate how little business or competition would be generated if instead of establi hing their distinctive outlets, McDonald's merely licensed a few restaurants around town to include on their menu "McDonald's hamburgers".

The court in Chicken Delight may have been correct in its observation that the historical concept of a trademark as a strict emblem of source to which it attaches has largely been abandoned , but its reasoning is murky when it draws from that observation that the " franchise license, with attendant rights to operate a business in a prescribed manner and to benefit from the good will of the trade name (sic), in no way requires the forced sale by the franchisor of some or all of the component articles." A trademark may no longer be a "strict emblem of source" but it remains an emb lem of source insofar as the trademark licensor must 14. Siegel e t al. v. Ch ic ke n De light Inc . e l oJ., 165 USPQ 400, D. C. N. D. C,lI. (1970) 15 . Siege / c l al. v. Chic/,ell Do li/II, I IIl C., e l aI., 448 F . 2d 43 , 171 USPQ 26 9 . CC A 9 (1971)

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control quality and if the only reasonable measure of control available is producing or having produced the means of production and the ingredients of the trademarked product then that reasonable course should be available to him . [deological concepts that so ignore the facts as to require the fiction of per se violations of the antitrust laws with .their resultant disrup t ion of conL-racts and heavy peLlaltles upon the nonconformist have no place in the courtroom or a free market.

With such an ample justification as the 1971 Chich en Delight decision to warrant a new incursion into the affairs of free enterprise, the Federal Trade Commission took on the " Chock Full 0' Nuts" franchises, vacating the decision of its administrative law judge to conclude thal the "Chock Full 0' Nuts" trademark license ' is a product separate from the food .. . and supplies sold in Chock restaurants."

Having drawn this conclusion in the face of the inherent characteristics of a trademark in which there is no property right "except as a right appurtenant to an established business in connection with which the mark is em ployed,' >l6 the FTC curiously allowed the alleged tie-in in respect to coffee and baked goods, bu t not as to hamburgers, sandwich spreads, and certain beverages. The FTC ruled that Chock would suffer no harm whatsoever if it were forced to license its trade secrets to other manufacturers of the latter food products! But the FTC does not stop at imposing the entirely unsupported compulsory licensing of trade secrets, it goes on the impose free compulsory licensing of the trademark itself! The FTC does no t question Chock's right to insist that its trademark be imprinted on paper products and other supplies, but states that Chock must license other suppliers, without charge, to imprint the mark on restauran t supplies intended for Chock licensees.

The dilemma faced by the franchisor is specific.ally Lhis: if he is to maintain uniform quality of the product sold under the licensed trademark by his franchise and if the merchandising of that product is to be surrounded with all of the symbols tha t will cause the public instantly to recognize the business as one purveying that produc t, then the franchisor must insist in its contract that franchisee maintain unifonn quality and employ uniform surroundings, uniforms, napkins, containers, etc. But if the fran chisor chooses the simple, most economical course of supplying these items to Lhe franchisee , he is open to the charge that he has "tied" the purchase of all of these items to the "tying product" , the trademark that the franchisee is trying to obtain the right to use. If the courts wc,uld recognize that the trademark without all that surrounding paraphernalia which gains it instant public recognition is not such a tying product as would have a dominant force in the marketpLace by itself and is in tntth part of a single package that enables its franchisees to swim " up the highly competitive stream" as Judge Friendly put it," lhis aber,ration that has gained the nickname of "Chicken Delight" may be put, deservedly, to rest.

1 6. Un ited Drug Co. u. Rec tan us, 24 8 U .S. 90 (1918) 17. Susser, supra.

Preparation ForTrial by William S. Schweers

For the past sixteen years, the greater part of my life as a lawyer has been devoted to the preparation and trial of personal injury litigation on behalf of plaintiffs. After graduation from Duquesne Law School in 1959, I served briefly as law clerk for Judges Henry Ellenbogen and William Creon in the Court of Common Pleas of Allegheny Cou nty . In 1960 [ went to work for Attorney James P. M Ardle who for many years had been an outstanding trial lawyer specializing in personal injul"Y litigation on behalf of plaintiffs. In 1967 we established the firm of Harrington, Feeney & Schweers. My remarks on trial prepar ation will, of necessity, reflect my background and experience in the law. I feel, however, that cel"tain general principles have application to any case that may one day end up in a courtroom regardless of which side of the counsel tabl one may be required to sit.

H is no exaggeration to say that preparation for trial should begin with the initial client interview .

The client should be int rviewed by the lawyer who will try the case for a num bel' of reasons . The personality of the client is perhaps the most important element in the ventual acceptance or rejection of the cHen t's claim by a jury. If the task of conducting the initial interview is delegated by the trial lawyer, he will l'eceive some papers that tell him what the cli nt has to say but not the way the client says it. He will not know the ability of the client to cOlmmmicate and to create empathy for his own cause. The task of the trial lawyer is to sell his client to the jury. Ideally, I suppose it should not make any difference what kind of personality the client has since the law should aim to treat all person equally. Practically, however, in my experience, it makes a tremendous difference in the eventual result when you are representing a person that an average jUl"Or can identify with and "feel for ." It i als extrem ly important to establish a rapport between the trial lawyer and the clien t so that they are at ease with each other and the eventual dialogue that the jury hears is the natural free flowing conversation of two people who know each other very well. Each attorney-client interview helps to establish and maintain this relation hip, but none is more important than the initial intervi w . In a true sense, the lawyer is the producer and director of the drama that unfolds before the jury and the client is the star. However each star should have a supporting cast.

To determine what kind of suppOlting cast your client has, a thorough investigation is necessary .

The investigator is employed to obtain the facts .

On the surface that sounds simple but invariably the product of the investigation reflects the skill determination, and independence of the investigator. Some investigators are so ager to pleas the attorney who employ d t.hem that they will minimize 01' completely overlook deficiencies in the case. Reading a r port from such an investigator can have an intoxicating effect, but like the inevitable hangover, the moment of truth will eventually arrive. The investigator sho uld be indefatigable in interviewing and taking tat.ements from anyone and v ryone who could possibly have knowledge of the case . On 0 ca ion, a negative statement, that is, a statement in which the individual say he knows absolutely nothing about the event, can be helpful when that arne individual who perhaps did not wish to get involved turns up as your opponent's witness.

In the expanding field of products liability litigation the selection of the expert witness is one of the most important considerations in trial preparation. The expert witne is the jury's teacher and

Edi tor's Note: William S. Schweers is a parlner in the firm of Harrington, Feeney & Schweers. He receiued his undergraduate education at St. Vincenl College, and gradUated from Duquesne Uniuersity chool of Law in 1959. Schweers has preuiously serued as Secretary. Vice-President. and President of the Association of TI'ial Lawyers of America. He is cUI1'elltly Vice-Preside nt of the Academy of Trial Lawyers of A llegheny Coullty.

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should be selected not only on the basis of his academic background but his ability and enthusiasm as a teacher. The lawyer himself must of COUl'se be thoroLlghly educated in the complexities of the particular ar a of expert路 e involved.

Fr qu ntly this requires the dev lopmen of a completely new vocabulary and many hours of pouring over patents, engineering treatises, medical works, and other emdite tomes that the liberal arts trained lawyer will find extremely difficult. The expert selected, however, hould serve as the lawyer's mentor and make his 1 arning task less burdensome in the course of their confel路ences. The lawyer can never employ an expelt and simply assLlme that h can rid himself of all of the technical aspects of the case. If the lawyer does not thoroughly understand the particular area involved, he can never explain it to the jury or successfully cross-examine the opponent's experts.

In the relatively brief time that I have been practicing law, I have noticed a considerable change in the emphasis placed upon fonnal discov ry proceedings in the preparation of litigation .

Under today's liberal rules of discovery, the diligent advocate can find out almost as much as he wants to about his opponent's case. In any given case, the amount of time devoted to formal discovery proceedings is gen rally governed by the complexities of the case and its damage potential.

In the typical product liability case, it is essential that the lawy r con ult with his expert prior to engaging in any type of formal discovery 0 that the questions framed in the interrogatories or depositions elicit the information that the expelt requires to formulate or bolster his opinion .

Ordinarily the discovery would tart with a set of interrogatories which would be aimed at liciting broad g neral information, questions that can be answered categorically. Answers to these interrogatories should provide fairly definite information as to who the spokesmen for the opposition are. The oral depositions of the chief spokesmen then should be scheduled . In many instances it seems that the entire case is tried in the course of oral depositions. Frequeo tly these cases are won or lost not in the courtroom but in the lawyer's office dming the cour e of oral depositions. The lawyer has the opportunity to evaluate the spokesmen for the opposition and is given a preview of their effectiveness as witnesses. He should prepare for these depositions in the same manner as he prepares for trial . It is extremely unlikely that a general fishing exped ition will be at all profitable. Therefore, he should go into the deposition knowing exactly what he is looking for and have a relatively good idea of what he is going to get. The way a question is framed is som time extremely important in the examination of a witness and it is usually essential to go into a deposition with questions prepared in advance leaving room for flexibility if the answers require orne divergence from the script. As a general mle a deposition of the opposing party should be taken in very case regardless of its lack of 8

complexity or damage potential. If the case is at all worth taking it is worth evaluating the personality of the opposing party and the impression he is likely to make as a witness in his own behalf.

In almost every court system today, there is some type of pretrial conference. Historically, the purpose of pretlial was to force each side to analyze its case to narrow the issues by agreement and stipulation, to mark and exchange exhibits so as to save time at trial. Today, however, in many courts the formal pretrial has given way to a conciliation in which the judge acts as a mediator in attempting to produce an out-of-court settlement.

Conciliation is of course an extremely important aspect of trial preparation . Statistically, some 90% to 95% of all civil cases are ettled without trial. It is generally true, however, that the lawyer's ability to produce a satisfactory out-of-court settlement for his client depends upon his preparing for trial .

Regardless of how glib the lawyer may be, the days of getting away with bluffing have long since passed. When a lawyer has practiced in a given community for any peliod of time, he soon acquires a healthy respect for his adversruies . In most cases they have gone through the same proc dures in preparing their case for hial as he has and will be convinced only by good solid evidence that the months of preparation have produced. If the lawyer has prepared his ca e for trial it can usually be settled . If however, he has accepted his case hoping for a s ttlement he may have to try it and will probably have a disappointed client.

When all of the court's efforts to produ e an out-of- ourt s ttlement have failed, the case is scheduled for jury selection. There are countless theories among lawyers concerning scientific jury selection . As a practical matter in most Pennsylvania juri dictions jW'y selection is about 90% guess work. The lawyer has very little opportunity to question the prospective jurors on voir dire.

Ordinarily, a clerk asks certain preordained questions and each side exercises preemptory challenge based largely upon the occupation of the juror and whether or not he has ever been involved in litigation himself. In some of the rural counti s of Pennsylvania, the lawyer does not yen get this much help . The theory in those counties is that everybody knows everybody else, and it is a little foolish to go through the questioning. The judge comes out on the bench and asks the panel whether any of them are related by blood or marriage to any of the parties and then the book containing the jtu'ors' names is passed for each lawyer to make his u路ikes. If you have not employed a local counsel in this situation you are in deep trouble .路 In general, Lhe object of jury selection is to attempt to find a juror who is likely to be sympathetic to your client's cause either because of similarities in age, educational background, occupation, nationality, etc .; but, in practice the lawyer is usually faced with a choice of the lesser of evils and would like to have fou r or five additional chal lenges.

The opening address to the jury is xtremely important and can 'erve to set the tone for the entire trial. First impressions ar often lasting and the jury will probably judge the lawyer more on hi opening address than any other element of the trial . The jury must be made aware that although the lawyer is a passionate advocate for his client he is bound by ertain rule and his case will be developed in accordance with those rules. In addition to telling lhe jury about his case he should explain the rules . Prepared or memorized opening addresses often sound exactly that way, so that the best method, 1 believe, in preparing for an opening is to have an outline in mind that covers the major aspects of the cas but can be altered or rearranged to meet the situation where the judge gives the jury a very thorough outline of the case. There is wide disparity among judges as to their practice in this regard. Some will come on the bench and ay absolutely nothing and others will take a half an hour or forty -five minutes to address the jury. If the lawyer has a memorized opening address, it may be rendered entirely ineffective by the judge's remarks.

I also believe that a lawyer should begin outlining his closing address prior to jury selection .

Personally, I feel that the trial portion of the cas is so demanding physically that if yOll wait until the case has been completed to begin thinking about the closing address, you may be too exhausted to give it your best. The most important preparation for a closing address is to create an attitude in your own mind about the case so that you actually feel quite strongly about your views; and, once you acquire this stat of mind, the ideas and the words seem to ÂŁall into place. I have listened to some brilliant closing addresses that I later had the opportunity to read; I was amazed to discover that the words themselves were not that forceful or compelling. It was, therefore, the way that the speech was delivered that made it great.

ThaL is why there can be no hard and fast rules for closing addresses, for the essential ingredient is the impression that the lawyer makes in conveying his sincerity and total dedication .

A trial brief is often helpful not only to the trial judge but to the lawyer himself in providing a framework for the presentation of the case. It serves to focus your attention upon the problem areas and also to provide you with the material for your points for charge at the completion of the case.

The direct examination of each witness called can and should be prepared in advance . The preparation should not take the form of an actual script since th.is would eliminate any semblance of spontaneity and put the jury to sleep . However, the questions written in advance should serve as a checklist; and, before the witness is turned over for cross- xamination, the lawyer should take the time to check h is notes and be certain that every question that he intended to ask has been asked .

Having a prepared set of questions for diJ:ect examination is also helpful when interviewing the

witness immediately b fore he testifies so that th witness knows exactly what he is going to basked and has the effect of lessening his anxiety and tension when testifying.

To the neophyte trial lawyer the term "coaching of witnesses" has an odious connotation . Perhaps he pictures a situation where he simply calls witnesses in off the street, they testify brilliantly becaus of his deft questioning and he wins th case. Unfortunately, it does not work that way in practice. PrepariJlg a witness to testify is a difficult and d manding task for the experienced trial lawyer because he is well aware of the dis tin lion between telling a witness what to say and getting him to say what be knows in a positive and convincing manner. The former is not only unethical but stupid . The later demands the skill and tact of the polished advocate .

Preparation for cro s xamination is also e sential . The first decision to make is whether to cross examine at all. This depends upon wh ther a particular witnes is an important spoke man for the opposition. If he is and if the lawyer has prepared his as properly, he should have a good idea of what the witness is going to say either becaus he has a written statemen t from him or has taken his deposition . The statements and/or depositions should be thoroughly analyzed prior to trial, and points favorable to your client's position noted . On cross examination these points should be made quickly and cleanly without running th risk of having the witness reiterate the advers testimony he was called to give. If you are reaonably convinced that the witness will say absolutely nothing helpful to your client's cau e then the only avenue left open is a peripheral cross examination attempting to show a fixed bias or prejudice. For this to be successful of course you have to research the background of the witne . If he is an exp rt witness you would want to be familiar with anything that h has ev r publish d on the subject; you would want to b able to confront him with recognized authorities whose opinions differ from his .

Is it possible to go through all of this exhausting trial preparation and still not win the case? Absolutely! The trial lawyer who has never lost a cas has not tried too many. The element of su pen e in the work is a source of both frutration and delight. There is no way I know of to completely eliminate all of the uncertainties. Fear of losing can paralyze a lawyer in the effective pr ntation of his case . The only sensible defense against this fear is thorough, painstaking, time-consuming preparation .

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9

SE~ Rulelfla"ing:

By Carole B. Dolson

4 Case Study In whl~h Corporate Insiders Comment on Rule 4mendments 4ffe~tlng Sto~k Option Plans Ever increasing amounts of a corporation's activities come under scrutiny by the Securities and Exchange Commission . Included within its regulatory scope is trading activity in the corporation's stock by "insiders" (officers , directors and holders of ten percent or more of the corporation's shares).

The "insider tradiJ1g" requirements are contained in Sections 16(a) and 16(b) of the Se 'urilies Exchange Act of 1934. Section 16(a) requires a person on becomjng an officer, director, or ten percent shareholder to file a form with the SEC indicating the amount of the company's stock held, and to supplement the filing each time there is a change in own rsh ip of the company's stock. Section] 6(b) permits a corporation to recover "short-swing" profits which an insider has realized on a sale and purchase, or purchase and sale , of company stock when the transactions occur within six months of each other. Section 16(b) is intended to prevent the unfair use oC information which may have been obtained by a corporate insid r because of his or her r lationship to the company and applied to the timing of purchases or sales of company stock, but it operates automatically regardless of whether inside information is actually used.

These Seclions are but a portion of the mandate which the SEC received in 1934 from Congress to protect the investor and assure the integrity of the mark tplace . Both the Securities Act of 1933, which govems lhe issuance of stock, and the Securities Exchange Act of 1934, which governs trading activity, are implemented through rules which flesh out the statutes with the force and effect of law. Thes SEC substantive rules are but one xampl of those issued by various federal regulatory agencies pursuant to statutory authority which requires administrative action to complete the rules of conduct which are presented in somewhat skel ton form in the statute.

The Administrative Procedure Act, 5 U.S.C. § 553 (Supp.

1969) governs the promulgation of federal agency rules.

The basic requirem nts for the adoption of ubstantive rules under the Administrative Procedure Act include the publication of notice indicating the time, place , and nature of the public rulemaking proceeding, and a slatement f the specific legal authority under which the rule is proposed.

The publication must also include either the actual provi· sions of the proposed rule or amendments to an exisling rule, or a summary sLatement of Lhe issues involved. The notice must be sufticienlly comprehensive so as to give inler sled parties Lhe information needed in order to com· ment and the opportunity to comment must be provided through a procedure which wiU insure that interested persons can participate in the rulemaking process.

There are advantages to the implementation of statutes by rules rather than by additional Congressional legislation which can be a slow process. Rulemaking. even with its time·consuming requirement of circulation for comments, is a relatively quick way to act which brings to bear to a 10

specific qu slion the knowledge of exp rts in a particular field . This is especially relevant in the fast·changing tield of securities transactions . It often requires the xp rience of living with a statute for a period of lime before problems not foreseen by the legislators can b d alt with through the rulemaking process. For example. different practices which come into use involving the selling or trading of securities can become the subjf'ct of a proposed new rule or a propo ed amendment to an existing rul • and the ability to rather quickJy changE' procedures or reqUirements which have become overly burdensome or ineffective works to enhance the efficiency of the SEC. Apart from constitutional due process considerations, the opportunity for individual participation in the creation

Editor's Note: Carole B. Dolson graduated from lhe Uniuersity of Norlh Carolina in 1970 and receiued her law degree fro m Wake Forest Un iuersity School of La w in 1974. Presently , she is an Allorney and Assistani Co ,.po,.ate Secreta,.y of Gulf Oil Corpo ration.

or amendment of federal regulatory agency rules is essential from two standpoints. First, it gives the agency the feedback needed to insure that it is dealing with real problems in a realistic way. Second, it gives an individual an opportunity to oppose the uSt! of rulemaking power in a way which may be seen as detrimental to his vital interests. rr a~ncies fail to provide this opportunity for individual participation there may be merit to the suggestion of

Justice William O. Douglas that all administrative agencies be terminated after ten years of existence because by then they have lost all initiative, sense of purpose, and direction.

A constant exchange of idea.~ between those governing by rulemaking and those being governed is vilal to the agen<.'Y

regulatory system.

This exchange of ideas can be illustrated by the following example involving corporate stock option plans.

These plans are generally limited to employees of the company, so that outside directors and shareholders of ten percent or more of the company's stock, even though covered as insiders by Section 16(b), are excluded from this discussion.

Corporate officers and other interested parties have recenlly had an opportunity to comment on proposed amendments to Rule 16b-3 of the Securities Exchange Act of 1934. The amendments were proposed in SEC Release No. 34-12374 on April 23, 1976, and the comment period expired on July 23, 1976. The rule governs, among other things, the receipt by officers of company stock through a stock oplion plan. A stock option plan is a form of executive compensation which rewards performance through the granting of options to purchase stock of the company. This increases executive ownership in the company which provides an individual with economic incentive to contribute to the well-being of the company. It also provides additional compensation, sin<.-e ill a rising stock market the value of the stock will be higher when the option is exercised than when it was granted. The main focus of the proposed amendments relate to stock appreciation rights, a relatively new form of executive compensation. The stock appreciation right is generally awarded along with a stock option and can be exercised in place of the stock option.

On exercising the stock appreciation right, the holder surrenders the underlying stock option and is entitled to receive lhe number of shares of stock which has a value equal to the dirrerence between the then fair market value of one share of the underlying stock and the option price per share times the number or shares covered by the option.

For example, J. Doe receives a stock option with appreciation right for 1,000 shares at an option price of $20.00 per share, and decides to exercise the appreciation right when the fair market value is $25.00 . The "value" of the appreciation right is ,$5,000, anived at by laking the difference ($5) between the then fair market value of one share of the underlying stock ($25) and the option price per share ($20) and multiplying that difference by the number of shares covered by the option (1,000) . J . Doe would thereCore receive $5,000 worth of stock, or 200 shares at $25 per share. If J. Doe had exercised the stock option rather than the appreciation right, he or she would have received 1,000 shares of stock with a fair market value on exercise or $25,000 for which a payment of the option price of $20,000 would have been made. The appreciation right itself has an economic advantage jn that no cash outlay is required Cor the receipt of stock. Additionally, many stock option plans which have included the ap路 preciation rights feature also contain a provision for the exercise (or cash of all or part of the appreciation right, at the discretion of a committee which administers the plan.

This provision is designed to further reduce the need for cash outlay in that it provides a means by which the corporate officer can pay the ta.x liability on the stock acquired, if any, or on the additional cash increment to income. Soon after the conception and adoption of the stock appreciation rights feature, it became apparent that

there existed the possibility that the SEC might consider the exercise of an appreciation right for cash to be a simult.aneous purchase and sale of stock of the company by an insider, resulting in what would appear t.o be an automatic short-swing profit situation as defined in Section IS(b). The theory was based on a view that the transaction involved a hypothetical purchase of stock by the corporate officer who then immediately sold it back to the company for cash.

TIlerefore, some corporations wiUl a stock appreciation rights feature in their stock option plans were advised by counsel that because the exercise of an appreciation right for cash might cause the corporate officer to be liable (or profits received in the transaction , a stock appreciation right should be exercised only for stock until the situation was clarified . This result, of course, defeated the whole purpose of including a cash redemption provision with the appreciation right and made it that much less desirable as a Corm of executive compensation.

The SEC rulemaking process was brought to bear on this problem initially through discussion with the SEC starf by interested parties. Attorneys for several corporations wrote the stafr, requesting an interpretative letter on Rule lSb-3 as it might relate to the exercise of stock appreciation rights for cash. However, the staff would not take a position on the question of whether the issuance of cash would invoh'p a Section 16(b) short.swing profit situation. As long as that stand continued corporations were reluctant to tak{' the chance of subjecting their officers to th{' possibility of having to return the profits made on the transaction to the corporation. The measure of recoverable profits in this situation is unclear but could w{'ll have been the total amount of cash re(.-eived.

The requests for interpretative letters, as well as informal discussions with the staff of t.he SEC, led to the agency's dealing with the question of stO<!k appreciation rights by a proposed amendment to Rule 16b-3. The general thrust of the new portions of the Rule is to treat stock appreciation rights exactly like the underlying stock option. Furthermore, the exercise of a stock appreciation right for cash is spE'cifically exempted from Seelion 16(b) and is not viewed as a purchase of stock which is simultaneously sold back lo the corporation in a cash sale. There are certain conditions established in Rule 16b-3 which must be met for the exemption to apply. These involve: (1) infonnation about the corporation issuing the stock, (2) limitations on the options, (3) limitations on the administrators of the plan, and (4) conditions which the plan must meet.

While lhe corporations with stock appreciation rights in their stock options plans have welcomed the proposed amendment generally, there has been some criticism of certain of the conditions established. Attorneys representing some of these corporations have expressed the criticisms to the SEC as part. of the commenting process.

While procedures ror tonnal hearings and oral testimony do exist as part of the SEC rulemaking process, in this case the comments were made by leller and possibly by informal discussion with the SEC staff.

It requires an indetenninate amount of time arter the end of the commenting period for the SEC to assimilate the various ideas proposed and criticisms oUered. If it appears from the comments that the proposed rule or amendment will not solve the problem, the proposal may be withdrawn.

If it is adopted, the SEC will issue a release to that effecl.

While the fate of the proposed amendments to Rule 16b-3 is not yet known, the rulemaking prO<!ess did provide an opportunity for aUorneys representing those most closely affected by the proposal, corporate officers, to participate.

The final version of Rule 16b路3 will be a combination of ideas from a number of persons whose interests are affected and is therefore expected to be a good example of the interaction between a federal regulatory agency and those it governs by the rulemaking process.

11

DEAN'S NOTE

The fall enrollment of this year's first year day and evening class at D uquesne Law School was truly a shock. All those who said they were coming came. Our normal first year enrollment is 100 in the day and 100 in the evening. This year we registered 120 students in th evening chool and 115 in the day school. Th is will make for somewhat crowded conditions in the first year classes but I am pleased that more and more students are making Duquesn Law chool their first choice.

SBA

COMMENT

In the past, the S.B.A. has served a variety of purposes for the students at Duquesne . Socially, th S.B.A. is responsible for uch event as ori ntation, faculty-student rap es ions, and th annual Christmas par ty . Administratively and academically, members of the Association serve on Fa uliystudent committ e' and on S .B.A. committees whose function is to aid in the Law School decision-making process. In general, th S.B.A. has represent d student interests to the law school faculty, administraLion, and the University community.

In th oming year, the S.B. . will contil1u to p dorm these functions. The difference this year will be our approach and the emphasis placed on carrying out th se responsibilities. We will attempt to make the .B.A. a more viable for e in the decision -making process. We shall striv to b come representative of the tudents' needs, desires, and opinions, which will be expressed to the facul ty and administration in a manner which will hopefully be a epted and acted upon .

To ac omplish this goal, we must make S.B. . more functional. Plans are being finalized to change parts of the S.B.A. Constitution which wiJl 12

As I mentioned in my welcoming address to our new students, the attrition rate of la t year' first year classes was, as rumored, shockingly substantial and not at all in keepinO' with our past experiences.

Hopefully, what last y ar's first year 'lasses experienced will be an aberration, and our attrition for this year will come ba k to the normal p r en tag _ Given th high admissions credentials of this year's first year classes th r is no question that all those admitted should be academically successful.

To the upperclassmen, we have lost our ssistant Dean and Director of Placement, Stuart Ludwig_ I did hope that his position would have been filled by now _ We are currently looking for a replacement. You may rest assured that the Dean's Office will make every effort to attract employers to the Law School.

Finally , as I mentioned earlier, the record enrollment at th Law School demonstrates that more and more law students are making Duquesn Law School their first choice . I guess our applicants are learning what we of the Duquesne Law chool family already know - that we are cl arly one of the better law schools of th is nation . Our traditions grow slowly but they grow.

supply th necessary flexibility for th organization to become more effective. Most importantly, I am hoping that thl'Ough our Executive Board we will b able to bring about a revitalization of th ommiitee structure. As a forum for student opinions, committe s s rYe a critical purpose. If there are to be changes, we must begin at a committe I vel. W II constructed programs an result in needed chang s.

During the year we will spon or programs which ,viII aid us in determilling th various attitud s of the students. Programs such as course valuation will include both the fall and spring term curriculum.

Iso a law school newsletter will be publi hed to keep the students informed of CUlT nt law school news.

Unfortunately, we begin this a 'ademic year without an sistant Dean of Placem nt. I am hopina this position will be filled as soon as po sible in order to facilitate the pro ess of d v loping an effective placement service for the scbool.

The oncerns of the S .B.A. this y ar are tho e of the students, faculty, and administration . Our goal is to make the Schdol of Law an institution where we all an obtain a quality legal ducation . As students, we realize the nece ity of working together with OUl' faculty and administration . We r cogniz that th administration and fa ulty are experienced in providing the necessary fram work for oW' legal education . We believe, however, that an important r source of ideas and information in this school al"e the students who attend it. Th .B.A . ho pes to speak to an open-mind d administration and facul ty who will Ii ten to our

opinion,.

&<'47 t14.

From The Halls

by Robert L . Garber

PROF ESSORS' PU BLiCATI ONS

PROFESSOR GEDID RETURNS

Professor Comelius Murphy's Legal Process casebook will be published by West as part of their American Casebook Series. West will releas the book this Spring for national distribution. The book is the result of years of research . Professor Murphy also has contributed a chapter on the valuation of nationalized property in International Law to a book recently published by the UniversiLy of Virginia Press.

Professor Palaez has completed a new section of material for inclusion in his Volume 7 A, Moore's Federal Practice. The n w Admiralty areas covered include: In Rem Actions against Maritime Property, and Possessory, Petitory, and Partition Property Actions.

Professor Palaez also published two articles: " The Wages of Seamen" in the Texas Law Review and "Salvage - A New Look at an Old Concept" in the Journal of Maritime Law & Commerce. As the Reporter for the U.S. District Court for the Western District of Pennsylvania Professor Palaez was responsible for the codification of the Court Committee's "Plan for Prompt Disposition of Criminal Cases Pursuant to Speedy Trial Act of 1974."

Duquesne welcomes back Professor John Gedid after his year of absence. Profes or Gedid earned his LL.M. at Yale . In addition to earning his LL.M., he began collaboration with Professor Geoffrey C. Hazard, Jr. on an article on the Res Judicata effect of class actions. His year also included extensive research in compiling portions of the tentative draft of the Restatement, econd, of Judgments with Professor Hazard, the Reporter of the Restatement. The many interesting conclusions of his re earch will add to his second semester Civil Procedure cours

FACULTY SUMMER POSITIONS

Dean John J . Sciullo taught Tnt ts and Wills at Hofstra Law hoo1.

Profe SOl" Frank McClellan taught Torts at Wayne State Law School.

Professo r Kenneth Hirsch taught "Legislation" at the Institute Preparativo Legal (Law School Preparation) of the Univ r ity of New Mexico School of Law. This was the second summer that Professor Hirsch participated in this Law School's new privately financed program for the non-Indian students to prepare the candidates for their first year of law school.

1931, was named the 1976 outstanding Duque ne Law School Alumnus.

N EW CLINICAL OPPORTUNITIES

Appellate Moot Court members Bernie Rabik, Brian Calahan, and Vincent Restauri will repres nt the law school in the Regional round of the National comp tition. The event sponsored by the Young Lawyers Section of the Philadelphia Bar Asso iation, will be held in Philadelphia on November 4th and 5th. The Board has scheduled a demonstration round during the third week of October for the benefit of the first and second year students.

Professor Sheldon Nahmod, Chairman of the Clinical Legal Educational Committee, has an nounced two new clinical programs. The first program, directed

by Adjunct Professor Sam Reich, is the Criminal Defense Clinic. Ten students will be assigned to and participate in actual cases beginning with the client interview and ranging through the preliminary hearing, the trial and , in some cases, the appeal . The s cond offering is a Federal District Court Clerkship with Judge Teitelbaum .

Two students will assist Judge Teitelbaum and his law clerk with rulings during trial, legal research, and the drafting of opinions.

These new offerings are in add it i on to the oth er clinical programs: the District Attorney Clinical Program, the Third Circuit Clerkship Program with Judges Aldiselt and Weis, Neighborhood Legal Services Clinical Program, the Commonwealth Court lerkship Program with Judg Kramer.

DEAN DAVENPORT

SBA ELECTIONS

Dean Ronald R. Davenport is Co-Chairman along with Elsie Hillman of Citizens' for Heinz Committee.

SBA elections were rec ntly conducted to choose class representatives. Those ele ted include: N orman Matlock (I-D), Joe Popiden (I-D), Bunny Bernfeld (I-E) , R. M. Meyer (I-E), Bill Grant (2-D), Mike Angelini (2-D), ondra Ian (2-E), Linda Frank (2-E), Arnold Schulberg (3-D), Paul Daniels (3-D), Henry Bems (3-E), Robin Bernst in (3-E), Marti n S coratow (4-E), and Richard Musmanno (4-E).

APPELLATE MOOT COURT

BARRISTER 'S BALL

Students, facu lty and guests are cordially invited to this year's Barrister Ball on aturday, December 11 at 8: 00 P.M. ALUMNI DINNER

The Duquesne Law School annual reunion dinner of law alumni was held on Tuesday, eptember 28, in the Ballroom of the Duquesne Union. Judge John G. Brosky was the guest speaker.

Edward 1. Goldberg, Class of

BEREAVEMENT

Juris extends its condolences to the family of Marge Profetta, tudent Organizations Secretary , on the death of her father-in-law .

13

F4CULTY PROFILE JOY FLOWERS CONTI

by Karen M. Balaban

The Fall Semester began with its usual hectic activity of first year students anxiously adjusting to their new surroundings, rushing to buy books, and meeting deadlines for their advan ed assignments. This mad whirl did not succeed for long in camouflaging the return of one of Duquesne's accomplished alumni, Joy Flowers Conti.

Professor Conti, a '73 graduate from the School of Law, is the newest full-time faculty member.

Her you thful appearance and petiteness may cause one to mistake her for a student. However, she is quickly distinguished by her excellent academic and professional record. Professor Conti has the distinction of being the first woman Editor-inChief of the Duquesne Law Review. he graduated umma cum laude and with the second higbest academic averag in the history of Duquesne. She had many other scholastic achievem nts, among them the Ord r of the Barrister and winner of the Appellate Moot Court Competition.

Her professional experience compLements her academic performance. She did research and prepared opinion memoranda for one year as a law clerk for Justice Manderino of the Supreme Court of Pennsylvania . Confident of her sharp, legal ability Professor Conti was then hired as an associate by the local firm of Kirkpatrick, Lockhart, Johnson & Hutchison, where she was for a time the only woman among 59 male attorneys.

Aware of the responsibility of being a woman in law, she quickly proved her adeptness by involving herself in all aspects of her field.

Professor Conti welcomes the opportunity to teach Corporations and Civil Procedure. "Teaching offers greater intelJectual freedom to write and stimulate creativity in the study of law," was her response concerning her decision to leave her successful practice. Professor Conti also has adrrunistrative responsibilities for the Legal Research & Writing course for first year students.

ProfessOI Conti believes in the Socratic method approach because it forces one to think and to interact in the learning process. She feels the Corporations course is an important part of each student's curriculum. Although only a few will become orporate lawyers, the course is valuable because its concepts are useful for the attorney in his own business practices.

Professor Conti is proud to renew her closeworking relationship with her alma mater. Her professional colleagues respect the quality attorneys Duquesne has trained. She respects Duquesne for not succumbing to the grade inflation practiced at many other legal institutions. he has found that more emphasi is placed on class standing than grades. "Our graduates are hjghly competitive with those from law schools throughout the country . The cuU'icuium here is comparative and our Trial and Appellate Moot Court programs urpass those of many of the other schools." In Professor Conti's estimation these 14

programs play an important role in grooming competent practitioners.

Professor Conti reflected on her feelings of being a woman in law. ' Women hold more responsibility due to a certain social pressure. Many peopl are looking at you as a woman and not as a per on. ' This may be due to the fact that many people are critical of the ability of a woman to succeed in the profession. Professor Conti be Ii ves a woman should be true to herself and her capabiliti s. They should try their hardest and work to their full potential. " It is important to see women doing well because they encourage others to emulate them ."

Being female does not necessarily cause problems.

It depends upon whether the particular individual has a good, positive attitude about her own capabilities. The job market is still good for women, as many firms are looking for a balanced staff. The influx of women in law has resulted in hiring women because of their legal ability and not to fill hiring quotas. Professor Conti's own experience was that male attorneys accept and respect qualified female lawyers.

A problem of growing notoriety is the lack of professional ethics among attorneys. Mrs. Conti commented that today people are more aware of ethics. It is something that must be worked at constantly. One must be conscious of conflicts that may arise. Ethical lawyers are th most respected in the community. The law school plays an important role in instilling a proper attitude in the mind of its students.

Professor Conti is an active member of the Allegheny County Bar Association, wh re she was elected to the Executive Committee of the Young Lawyers. She served on the Bar's Nominating Committee. She also remains available in an advisory status to her undergraduate sorority at Duquesne.

The energy of Professor Conti is amazing, since these activities are secondary to the priority given to being with her husband and young son.

Duquesne is proud to have obtained the services of Joy Flowers Conti. We are certain sbe will be a valuable asset to our teaching staff.

THOMAS A. DALEY , L'61

PAUL A. MANION, L'61

In an office as un assuming as the man him self, behind 11 is desk piled high with current briefs and 'ourt arguments, sits Thomas A. Daley . He is an Assistant United States ttorney for the Department of Justice, Western District of Pa. a position he has held since February, 1963 . The U.S. Attorney's office, located on the sixth floor of the U.S. Court House and Post Office, handl s all federal and criminal offens inv stigations and prosecutions. In addition th office also do sa considerabl amount of civil work, such as representing the government in tort claims and environmental cases. But Daley, one of 16 aUorneys in th office, limits himself mo. tly to the former category . In August, 1973 be was appointed Chief of t.he Criminal D ivision, where he now supervises the attorn ys, revi ws cases and indictments, and decides when to prosecute. He also handles all criminal Lax cases referred to his office by the Internal Revenue Service.

Before beginning his law career, Daley served [our years in the Air Force, three of them overseas, then returned to graduate Magna Cum Laude from Duquesne University in 1958 where he majored in English. In law school, he worked as a student librarian during the school year and in construction during the summers; h graduated first in the Day Division in 1961. His initial position upon graduation was as Deputy Attorn y General in Harrisburg, where he worked until his current position .

Thoroughly involving himself in his work, Daley, 44, finds the most enjoyable part of his job to be the trial itself, despite its high demand . Working around the clock on some trials which last several weeks, he describes h is position as 'demanding work, but stimulating and satisfying." He explained that after many years of experience, trying cases b comes easier. Two of th most significant cases that he handled were th Robert Duggan case, former District Attorn y of Allegheny COlmty, indkted for income tax evasion in March, 1974; and the amuel Ferraro case, prosecuted for filing false income tax returns . Pres ntly, Daley has about 35 criminal cases assigned to him and the same number of civil as s, mostly involving taxes.

Despite his accomplishments, Daley has remained modest, and has maintained a low profile . He seeks no publicity for his public servic ,as evidenced by his reluctance to submit to this interview . He is single and resides in Pittsburgh.

Currently Daley is preparing indictments on several of his approximately 70 cases. Amidst all the work, he still finds time to involve himself in sports, playing handbalJ and qua h and running outdoors on weekends.

Adorn ing th wall of a sixth floor office of the Union Trust Building is a painting of Hong Kong by night . To Paul Manion th painting's owner, it. is a reminder of his persistent effort to attain favorable results for a client in the overseas British colony . His hard work continues now as a member of the firm of Reed, Smith, Shaw & McClay.

Manion, 40, received both his undergraduate and law degr es at Duqu sn . He financed th is part of his education by work ing as a boilermaker in the construction industry. He graduated Summa Cum Laude in 1957 with a B.A. in History and Engl ish and was admitted to the Duquesne Law School , Evening Division, in Septemb r of that year.

During his first two years in law school h maintained his construction job during the day. 1n 1959 he took a position as bailiff for Judge Austin Staley in the Third Circuit Court Of Appeals . With this experience, he graduated first in the Evening Division oC 1961, and thereafter Manion accepted employment with th Federal Trade Commission in Washington, D. C. One year later h return d to Pennsylvania to clerk for Judge taley who was instrumental in refining Manion's legal talents.

During this time he r ceived many offers from private law firms which as he states, "were too good to refuse" . He finally accepted the offer of Reed, Smith, Shaw & McClay in 1964 .

Manion explained that most young lawy rs b gin their careers as 'caddies" doing the research work for trial lawyers. Due to Ius own experience in the Third Cir uit Court Of Appeals, Manion rapidly advanced to the position of trial lawyer in the firm's litigation department. His most not worthy case was the famous 'malodorous cas "of 1968 in which he represented Neville Chemical Company in a civil suit. against Uruon Carbide. The court awarded Neville Chemical Company $2.1 million in damages which, at that time, was the largest verdict in a Pennsylvania court. The decision is a leading case in the law on Damages.

Currently, he is involved in a chall nge of th constitutionality of the Pennsylvania Sunday Blu Laws as well as a Pennsylvania Supreme Court case in the field of Environmental Law .

Manion is also active in th Allegheny County Bar Association, and was rece ntly nominated for the office of Admin istrative Vice President of the Association . He has served as President of the Pittsburgh chapter of the Federal Bar Association.

Manion resides in the North Hills with his wife Jeanne and spends his spare time playing softball and watching sports; he is an avid follower of the Pittsburgh Ste lers.

(M .W.R.)

(C.A.L.) 15

ORGANIZATION NEWS

ALUMNI NEWS

DWLSA

John Wolf, Jr. L'74 has assumed the position of Manager - Commercial Railing of Napco, inc . of Valencia, Pa. Wolf will be responsib le for the development of heavy-du ty railing systems.

Duquesne Women Law Students Associalion is an org311· ization which is concerned with promoting women in the legal profession . Membership is open to all members of the student body and faculty of the law school. In the past its activities have included a mock rape trial, a senior citizen's teach·in in th area of landlord·tenant law, and writing an amicus brief in a sex discrimination case involving a Pittsburgh area law firm . DWALSA is now attempting to schedule a counseling service for first year students.

LSD The Law Student Division of the American Bar Associ· ation will soon seek new members. As Representative of the Law Student Division at Duquesne, Jim Pocius encourages all law students to join.

For all people interested in joining or learning more about L.S.D. and its opportunities, there will be a table set up in the Student Loung on the sixth floor of the law building sometime during the last week of October; further notices will be posted in the Law School.

***** Harvey J . Eger, L'70, has join d R source Investments, Inc . in the position of General Couns I Eg r was formerly assoc iated with the firm of Berkman, Ruslander, Po hi, Lieber and Engel.

* * ** * Frances O. Tennant, L'69, a partner in the firm of Kaufman and Harris, was elected Chail'person of The Allegheny County Bar Association' Legal Rights of Women Section.

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PAD Delores Laputka and Karen Balaban were the Egan Chapter delegates to the Phi Alpha Delta International Law Fraternity Convention in KaIlsas City this summ r. Repre. sentatives of 150 law schools in the United States, Canada and Puerto Rico were in altendance. The guest speaker was Former Supreme Court Justic Tom Clark who spoke on the function of law schools in the seventies. He also en· couraged the delegates to practice the Phi Alpha Delta motto: "Serv ice to the Stud nt, the Law School and the Profession."

PAD sponsored a used book sale during th first week of classes. During Lhe se 'ond and third weeks of school PAD members monitored courtroom visitations for first year students. Allegheny County Judges Barry and Wekselman were instrumental in implementing the visitation program.

Vol. X No. 1- October, 1976

Juris Alumni Carl E. Harvison News Robert L. Garber Layout Earl M tcalf Features Frank Mayer

Editor-in·Chief Thomas R. Klin Associale Editor Gerald G. DeAngelis

Assistant Editors Bonnie L. eppenbrock Bernard J. Rabik William J. McGarvey Mark W. Morava

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John W. Giltinan L '74, has been named trea urer of the Lawyers' Club of Allegheny County.

Giltinan j a ole practitioner.

* * '" * * James G. Groninger, L'69, is the new president of the Lawyers' Club of Allegheny County . A member of the law finn of Kirkpatrick, Lockhart, Johnson and Hutchison, Groninger assumed his duties at this year' annual club meeting in June.

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Thomas S. Vereb, L'76 , has recently co·edited 'KINDEX, An lnde to Legal Periodicals Concerning Children, 1965-1975, published by the National Center for Juvenile Justice. There are plans for the production of supplements every six months. Vereb is a Research ssociate at h Center.

Juris Duqu esne University School of Law 600 Forbes Aven ue Pittsbu rgh , Pennsylvani a 15219

Non -P ro lit O rgan ization

U. S . POST A G E

PAID Pittsburgh. Pi!.

Perm,t No. 390

StaIf Members: Sandra Alan, Karen M. Balaban, Gerald Cipriani, William Cline , Janine Fiesta, Charles A. Lenns, Vincent J. Restauri, Martha W. Ri gel, mold S hulberg, Michael Angelini, Karyn Rok, Colette Cox. Facully Advisors: icholas J . Demas and John J .

Sciullo.

JURIS is a student publication oC the Duquesne Uni· versity School of Law. lanuscripts and comments may be addressed to JURIS, Duquesn University School of Law, 600 Forbes Avenue, Pittsburgh, Penn· sylvania 15219. Telephone (412) 434·6305.

Copyrighl © 1976, Duquesne University

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