Law Clerk: Writing Sample (1981)

From about June 1, 1981 until August 1982 I was employed as a law clerk at the Philadelphia law firm of Sagot & Jennings.  I had completed my second year of law school in May 1981.  My work at the firm consisted of researching, drafting and writing pleadings filed in state and federal courts.  My supervising attorney was Stephen F. Ritner, Esq.  I completed assignments for Thomas W. Jennings, Esq. (labor law), Stephen F. Ritner, Esq. (commercial law), Michael Mulvey, Esq. (personal injury), Charles C. Shainberg, Esq. (family law), and William Einhorn, Esq. (labor law).

Every judge who ruled on a case in which I had written a pleading ruled in favor of our clients.  Permit me this one item of narcissistic exhibitionism: I never lost a case.

Freedman v. D.C. Department of Human Rights, in which I was a pro se litigant, was the first and only occasion that courts ruled against me.  People say, "He's angry because the D.C. courts did not order his job reinstatement at the law firm of Akin, Gump, Strauss, Hauer & Feld" (where I was employed as a paralegal from 1988 to 1991.)  No, that's not what bothers me.  My specific narcissistic injury is grounded in the fact that I was a lawyer who had never experienced a court ruling against one of my pleadings.  My specific narcissistic injury does not relate to my status as a terminated paralegal.  My specific narcissistic injury relates, instead, to my status as a lawyer.

The following is a pleading I wrote for Charles C. Shainberg, Esq., a most excellent chappie who smoked fine cigars!

CHARLES C. SHAINBERG, ESQUIRE
SAGOT & JENNINGS
Identification No. 19420 Attorney for: Plaintiff
Suite 1300
TWO PENN CENTER
PHILADELPHIA, PA 19102
(215) 241-8160
_____________________

ALBERT WILLIAM SCHIAVO

Vs.

KATHRYN L. EMBERGER SCHIAVO
______________________

COURT OF COMMON PLEAS
Family Division
August Term, 1981

No. 849

MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY

OBJECTIONS OF PLAINTIFF, ALBERT WILLIAM SCHIAVO, TO DEFENDANT’S

ANSWER AND COUNTERCLAIM

______________________________________

The Plaintiff preliminarily objects to the Defendant’s Answer and Counterclaim in this matter on the grounds that Defendant has failed to set forth a cause of action in her Counterclaim, and, further has failed to set forth a cause of action which would permit her to seek the relief set forth in the Answer and Counterclaim.

In her Answer to Plaintiff’s Complaint, the Defendant denies that the parties have not been cohabiting for the three-year period alleged by Plaintiff. Further she requests that the Complaint in Divorce be dismissed.

Defendant thereafter sets forth Counts seeking equitable distribution, alimony, child support, alimony pendente lite, counsel fees and expenses but does not set forth grounds for divorce. Accordingly, the Defendant’s Answer and Counterclaim should be stricken.

Since section 401 of the Divorce Code of 1980 states that the relief sought by Defendant can only be granted as part of a Decree in Divorce, it is clear that Defendant can only obtain the requested relief by either admitting the grounds for divorce alleged by Plaintiff, or, in the alternative, setting forth a separate cause of action. For, in failing to set forth a cause of action the Defendant will have no grounds upon which to obtain the requested relief should Plaintiff’s Complaint in Divorce be dismissed.

Further, Pa.R.C.P. 1031, which governs counterclaims in actions of assumpsit, 1/ states that “[t]he defendant may set forth in an answer under the heading 'Counterclaim' any cause of action or set-off which he has against the Plaintiff. . . .” Since the Counterclaim is in reality an affirmative cross action by the defendant against the plaintiff, the counterclaim must correspond in form with the complaint which the defendant would file were he to bring a separate action. See Goodrich Amram 2d Sec. 1031(b):1.

As stated in Olivieri v. Olivieri, 247 Pa. Super. 457, 364 A.2d 361, 363 (1976): “It is well-settled that a counterclaim must meet the same formal requirements as a complaint; it must contain in precise and summary form the material facts upon which the defendant relies to recover his counterclaim from the plaintiff; and must satisfy all the other requirements relating to a complaint. . . .”

In neglecting to state a cause of action, Defendant’s Counterclaim is defective since it fails to conform to the elementary rule of law and rule of court that a counterclaim is essentially “an independent action by the defendant, deferred until such time as the defendant is brought into court and is to be regarded as if it were a separate action.” Com. Ex rel. Sheppard v. Central Penn National Bank, 31 Pa. Cmwlth. 190, 375 A.2d 874, 878 (1977); accord, Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962).

In summary, since the Defendant’s Counterclaim fails to correspond in form with the complaint which the Defendant would file were be to bring a separate suit, in that it does not state a cause of action, the Counterclaim is patently deficient.

Respectfully submitted,

/s/

CHARLES C. SHAINBERG, ESQUIRE

1/ Pa.R.C.P. 1920.1 states that actions in divorce, except as provided in that chapter, shall be in accordance with the rules relating to actions in assumpsit.