Massachusetts Lawyer Blog

More and more calls and emails have inquired about short sales, among other debt problems and today's credit crisis. The misguided assumption many people seem to be making is that these "short sales" are now routine and easy. This would be an unwise assumption to make. While a short sale can be accomplished in Massachusetts or elsewhere, there are no guarantees your lender will allow a sale for less than what is owed on the mortgage ("short"). There are even times when it is to their benefit not to allow a short sale (perhaps a topic for later).

Further, the administrative logistics involved in getting a short shale approved can prove challenging if not outright discouraging in these transactions. Even in those cases where a "short sale" is ultimately allowed, you must beware because not all short sales are created equal. Are you released from future liability? What do all those contracts mean? Who is paying for what and when? The housing crisis was created in part by a lot of people being told to just sign documents and everything would be just fine. Remember, don't make the same mistake twice.

An issue that has proven to be extremely difficult in short sales has been second mortgages or equity lines, an issue for a later post, but one people should make sure they mention when it applies in their situation.

I got the chance to check out the Massachusetts Bar Association and Lawyers Weekly Legal Tech Expo at the Sheraton in Boston today.  I'm glad I was able to attend and I'd recommend the March 2009 event to practicing attorneys in the area. 

It was nice to connect with local folks from TurboLaw and other favorite vendors.  The football from Esquire Litigation Solutions was a big hit with my son -- it was worth carrying around for him.

Rick Borstein's presentation on Adobe Acrobat 9 shows some promising features, but I'm still waiting to hear how it integrates with TimeMatters (until I find the perfect TimeMatters replacement.) Rick wasn't sure so I'll probably have to wait and see.

For real estate conveyancers, e-recording is here and moving ahead: check out simplifile.  I had an informative discussion with Attorney Paul Roth and I was suprised to learn the number of MA counties already recording online, including Plymouth.

Matthew Dorris of Z Media Technologies Inc. provides support for media projects.  We had a  brief but impressive discussion about video production options for web content.  This may be reasonably priced solution if you're looking for one.

I've not mentioned others (some business cards are still in my car) and still others I didn't get to meet, but everyone I spoke with shared a vision of using technology to improve the delivery of legal services and was excited about what the future holds.  If you interested in more information, see the full list of vendors.  Also, consider visiting Law Office Management Assistance Program for additional resources or consider attending the March 20, 2009 event at the Sheraton Framingham.  I'm also putting together a Legal Tech Continuing Legal Education program or series in South Eastern MA for the Spring/Fall, if you're an attorney in the area and have an interest in participating or specific areas you'd like to covered, please contact me.

Driving from Weymouth to Rockland this morning (a short trip) the news was pretty consistent.  Things aren't good.  You don't need to be a bankruptcy lawyer to know the bankruptcy news is not limited to national stories.  Local impacts are being felt throughout Massachusetts.  As companies fold or downsize, jobs are eliminated, leaving employees questioning, "What's next?"

For some (not all), perhaps the answer includes starting a business in Massachusetts.  The Duct Tape Marketing Blog lists its Top 12 Resources for Start-Ups.  In addition to these 12, I thought I'd offer a dozen earlier posts I had written on business law issues or resources in Massachusetts a start-up might consider:

1. 10 free lessons on starting and running a business
2. Mistakes made in forming a partnership in Massachusetts
3. 7 issues to be prepared for in Massachusetts leases
4. Copyright law explained in a drawing
5. Independent contractor issues to be aware of in Massachusetts
6. Electronic evidence if you get sued
7. Wage and employment law in Mass.
   
8. Sexual Harassment and Discrimination Law in MA
   
9. Contracts and partnership agreements
10. Public infrastructure opportunities in MA
    
11. Employment Posts (in general) Massachusetts
    
12. Succession planning for Massachusetts business owners

It's not uncommon for death and probate cases in Mass to involve people who are suffering a loss and experiencing grief. As their lawyer in a wrongful death case or in a Massachusetts probate estate matter, I'm often directly discussing what caused the death of their loved one or the final wishes of a spouse, parent, child, or friend. Some of our discussions can be difficult and quite emotional

It seems whenever someone begins to cry or need a moment, they almost instinctively need to apologize afterward and then offer a reason for why they shouldn't be getting emotional. I've heard person after person explain how they "should" be experiencing their grief. I've never quite understood this -- many times their loss moves me too.

While I'm no psychologist, I've never found there to be any set rules here. While it's somewhat slanted in its origin (and in a couple of places maybe), I came across this article discussing the Ten Common Myths and Realities About Grief. I'm listing an excerpt of some of the myths below to give you the general idea.

• "It has been a year since your spouse died. Don't you think you should be dating by now?"
• "You look so well!"
• "The best thing we can do (for the griever) is to avoid discussing the loss."
• "It has been six (or nine or 12) months now.
• "Don't you think you should be over it?"
• "You need to be more active and get out more!"
• "You are young, and you can get married again."
• "Your loved one is no longer in pain now. Be thankful for that."
• "She cries a lot. I'm concerned she is going to have a nervous breakdown."
• "Grief support groups are too depressing and not helpful."

Again, I'm no psychologist, but I'm guessing the list (on myths about grieving) could be expanded quite a bit and, like me, many lawyers in Mass and elsewhere have seen it firsthand.

Some bereavement support resources (these may change but a search for "bereavement support group" and then your area may offer some local results) are below. Also check with your local hospice, hospital, funeral home, city/town hall, or attorney for local options if you are interested.

Some links from today...

• Massachusetts Center for Sudden Infant Death Syndrome

• MGH Bereavement Support Group

• The Good Grief Program

• The Good Grief Program Family Resources Page

• Hospice of the South Shore Bereavement Care: 781-794-7803

• Quincy Hospital Bereavement Support Group: 617-376-5502

• Grief and Loss Resources from website of Help Starts Here also see their article on Grief and Loss - Your Options: Bereavement Support Groups -- An Effective Tool for Healing.

Mass. employment, labor, and wage law issues are active lately so I thought this might be of interest to lawyers and consumers alike who are also following national employment issues.

The Wall Street Journal reports,

Two U.S. senators accused the Department of Labor of violating the 'spirit and goals' of a federal law aimed at protecting employees who report corporate wrongdoing, and called on the agency to stop rejecting claims from workers at subsidiary companies. In a letter to Secretary of Labor Elaine Chao, Sen. Patrick Leahy, a Vermont Democrat who is chairman of the Judiciary Committee, and Sen. Charles Grassley, an Iowa Republican who also is on the committee, wrote that they were dismayed that the 'administration -- the Department of Labor in particular -- has been using overly restrictive interpretation of this law to dismiss a majority of the complaints' filed under the whistleblower-protection provisions of the 2002 Sarbanes-Oxley Act. Sen. Leahy and Sen. Grassley, who wrote those provisions, said that 'there is simply no basis to assert' that employees of the subsidiaries of publicly traded companies aren't covered under the act, as the department has ass erted in numerous recent cases.

Our next choice in President will likely shape the policy choices at the Department of Labor. Perhaps this won't emerge as a topic of interesting debate, but it is one of consequence to employees and employers.

It never ceases to amaze me how attorneys need to fight for their employment clients' jobs or workplace rights even in open and shut cases.  This morning I was in Boston, MA passing time by reading an other lawyer's employment law article and case discussing the Family Medical Leave Act (FMLA) and employment retaliation claims. See Linda Horras' article for further review and/or download a copy of the full case: Bryant v. Dollar Gen. Corp., No. 07-5006 (6th Cir., Aug. 15, 2008).

SUMMARY

An employee fired four days after a Family Medical Leave Act (FMLA) leave was successful in her FMLA retaliation claim.  This makes logical sense -- why allow the right to take FMLA leave if one can be punished for it after?  The company argued the FMLA statute did not expressly prohibit retaliation against an employee.  The court didn't buy their argument.

LESSON

Employment retaliation claims, even when not expressly found in the law, may be reasonably inferred when they arise from a protected employment right.

Bankruptcy avoidance vs. filing for bankruptcy in MA has been a recurring theme I've been discussing in my law office with lawyers, debtors, and creditors in several recent discussions. Some are potential bankruptcy clients while others are small business owners worried about debts they're owed. The economy is hitting many hard. Gas prices and public transportation reliance provides a continuing example.

It is being reported that transportation data to be released is revealing 5.2 percent increase in transit ridership during the second quarter, "as record-high gas prices pushed people to take millions more trips on buses and rail systems." While gas prices are certainly one factor in the equation hitting peoples wallets there are others too.

People are struggling and unable to pay their rising debts. Many are worried about their homes, medicine, heating costs, credit cards, collection companies, mortgages, taxes, insurance... This has led to more conversations around places like Weymouth about bankruptcy and bankruptcy avoidance options. Whether they're single, married, kids, no kids, individual consumer, family, business owner..., no two case are the same.

Anyone in debt should not rely on rumors and unsubstantiated advice when it comes to their financial security and future. Instead they should seek the assistance of an attorney or debt relief agency that can find options for a fresh start or a workable plan. Not all plans or proposed solutions, however, are created equal. If something doesn't feel right, get a second opinion. I have a client who has struggled to make payments under a "plan" arranged for him by a credit "assistance" group, but it's obviously only made things worse for him during the last year -- he's in more debt now. Now it's time to file bankruptcy, it probably was the right time a year ago...

Blogs, social networks, and the web extend well beyond Massachusetts borders thus it's often instructive to look around the country and consider how laws are developing elsewhere as they relate to blogging and cyberspace in general. Trial lawyers of both today and of the future will need to be well versed in the law and understand this evolving interactive arena that changes day-by-day. Blogger and California law professor Eric Goldman recently mentions a case involving blog postings being introduced as evidence in a trademark infringement lawsuit. He quotes the court's holding which excluded the blog's comments from evidence.

The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4

Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

(The case was as consumer confusion case on whether "Mooo Tracks" ice cream infringes upon "Moose Track" ice cream. Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)).

You can look at this from two perspectives, the blog comments were kept out. On the other hand, there were some criteria listed for their exclusion. If these were met, would the comments be allowed into evidence here? It would seem so, why shouldn't they be? Look to the next round of cases to have greater foundations laid down concerning the inclusion of blog comments as evidence.

Like many attorneys I talk with, I'm already seeing more of my clients who are relying on blogs or websites for much of their news. The constantly dwindling size of my newspaper backs this up too. Some do believe, "If I read it, then it's true," but as we know, that's often not the case.

Reliability, validity, authenticity are continuing concerns of justice and in the short term, it seems the web won't make things easier in these areas. Here the law still has much to work out regarding how it's going to keep pace with the web, social media, web 2.0 or whatever name or thing is next. Smart trial lawyers will need to keep pace with these evidentiary possibilities as more and more communications and events are recorded somewhere someplace electronically. Appellate courts and lawyers should see interesting and intellectually stimulaing times ahead in this area of law. While some of the tools of proof may be new, the principles remain the same -- it may just take a little time to connect the two.

Lately I've been hearing more and more from employees in Massachusetts who have been fired from their jobs or discriminated against at work. Some involve wage claims, others are retaliation claims. Many of these fired employees are forced to leave a bad employer (due to a new manager) and are looking to move on with a fair severance package or appropriate settlement arrangement, others just want a fair chance at having their jobs back. Some employees who are moving on are leaving jobs behind where they have worked for years. Now they wonder, how do I keep my new job in this tough economy.

An email from Keith Ferrazzi I received today discusses Stephen Viscusi's Bulletproof Your Job: 4 Simple Strategies to Ride Out the Rough Times and Come Out On Top at Work, a book on your personal brand at work. Here's his list of a few favorites he pulled directly from the book that can help those finding themselves in a new job or looking to secure their current employment positions.

Five Tips to Bulletproof Your Job Today

1. Introduce Yourself: "You don't need to get your name on a billboard to make yourself known to a company bigwig. You just need three things: say your name, assert your connection to her, and share your personal pitch... Follow up with an e-mail or handwritten note, reminding him of your brief meeting and saying how much you enjoyed it."

2. Volunteer to Lead: "Offering to take the lead shows you have a stomach for risk, the capacity to learn, and the desire for accomplishment that others might not possess."

3. Be Positive: "In short, positive people are easy to work with and negative people are not. And smart positive people are among the most valuable in the workplace.... You can choose to be positive - and to set off the whole chain of positive influence - simply by indentifying your current worldview and habits and making conscious positive adjustments... All you have to do is smile."

4. Be A Mentor: "...step up and offer a bit of support that will help newbies feel a connection that will make them want to stay in the game and get with the program... It allows you to plant seeds of influence and support throughout your company and your industry that will grow and become more valuable to you over time... You just need to know the ropes of your workplace and have some experience that would be helpful to someone else... Keep things informal, meet regularly, keep it professional, and keep up the connection."

5. Improve Your Networking Skills: "Job survival and advancement are about always having a substantial list of professional acquaintances... The most influential and useful are usually those who work in and around your field, but it's not at all unusual for an outsider to be the most effective person in your network... For every person you collect into your network because she may be helpful to you, you should count on being called onto be a resource for her, too."

Massachusetts employment and contract laws can often collide. As an attorney, I'd say the same can be said for federal law, contract law, and other state's employment laws too.

Take this for example from CO lawyers' Holme, Roberts & Owen LLP' Employment Law Newsletter, where Jennifer Sloan Bielak discusses a U.S. Court of Appeals ruling where an employee not otherwise entitled for Family and Medical Leave Act ("FMLA") rights was entitled to them because the FMLA conditions were set forth in the employee handbook. See Peters v. Gilead Sciences, Inc. No. 06-4290 (7th Cir. July 14, 2008).

Commenting on the case, Bielak writes,

Many employers incorrectly believe that employee handbooks are not binding legal contracts based on disclaimers, which state that the handbook is not a contract. These disclaimers, however, are often invalid. Under basic principles of contract law, whenever there is a conflict between general and specific contract terms, the general term is ignored, and the specific term is enforced. Thus, one cannot take away a specific contract right like the right to progressive discipline or employee leave with a general provision saying that the employee handbook is not a contract. If a handbook term gives employees specific rights, it is probably an enforceable employment contract.

The case stresses the importance for employers of understanding that employee handbooks and personnel policies are part of the law of the workplace and need to be written as such. Avoid idealistic polices that reflect the way an ideal workplace is supposed to work. Instead, write policies that are simple, that can be understood and followed by all managers and supervisors, and that are easy to apply in actual practice.

Whether I'm in a union hall in Boston or a boardroom in Braintree, I'm seeing employment discrimination and wage claims continuing to remain on the rise in Massachusetts. At the same time, the right to earn a living wage seems to be have begun being protected more and more by the courts. In sum, the technical requirements and risks seem greater for employers moreso now than ever before. Employees are calling lawyers like myself daily to discuss their employemnt claims. In this climate, all employers are best advised to make sure their policies are firmly in place and are being implemented soundly. While the scales may have tipped in their favor in the past, I wouldn't count on it in today's environment.

Our bankruptcy practice in Weymouth, MA is now online allowing our lawyers to serve people suffering from debt in Massachusetts who would like to work on their bankruptcy qualification questions from the privacy and convenience of their own home. Our clients or potential clients can access their bankruptcy interview from any computer connected to the internet.

Our law office has a number of online offerings we're enhancing and will be rolling out over the next few months as we continue seeking innovative ways of providing quality, efficient, and convenient services in South Eastern Massachusetts and the Greater Boston Area.

The Massachusetts Supreme Judicial Court's (SJC) ruling in Commonwealth v. Donohue upholds MA Sheriffs' powers to release inmates wearing a GPS tracking device rather than serving the full sentence imposed on them by the courts.

There are interesting arguments to consider here: balance of powers, executive vs. judicial vs. legislative, prison overcrowding, reintergration with society, activism vs. legal realism... With another seat on the court opening, Governor Patrick has another opportunity to direct which way those debates lean for the years to come.