Massachusetts Lawyer Blog

What happens in Massachusetts when someone dies but their will can’t be found?

This question was recently addressed by the Massachusetts Supreme Judicial Court (SJC) in the Matter of the Estate of Marc R. Beauregard. Beauregard who died at age 40, unmarried, and childless, lived at the same address as Steven Knight.

Beauregard’s father was appointed as administrator of his estate, but Knight filed a petition to probate a “copy” of a will where significant property was left to Knight. Beauregard’s parents and siblings objected to Knight’s filing of the copy and litigation ensued.

The probate trial judge found Beauregard had, in fact, executed a will which had been witnessed by two persons in accordance with M.G.L. c. 191, § 1, and had kept the original himself. Five weeks after the will was executed, however, Beauregard was murdered. No will was found.

Continue reading "Massachusetts Probate Cases Involving a Lost Will: Evidentiary Presumptions Rise Again" »

Sarah Randag, recently posted on the ABA Journal a labor and employment law post, LinkedIn Reviews Can Come Back to Haunt Employers, Lawyers Say, which opens with,

Management-side employment lawyers are advising their clients against writing recommendations for current or recent employees on LinkedIn.

The same argument could be made on Facebook, Twitter, or any other social media web site.  Does your company have a social media policy? If so, are you tracking or keeping a record of what is being said, if anything, about your employees by their managers on the web? Do you prefer to not know? When workplace disputes arise, do you see if anything has been brought up or mentioned on the web. If so, and you discover something online, are you dealing with it in a way that could lead to litigation down the road? On a related issue, if an employee complains to you about another employee's postings on the web, are you prepared to respond? With changes in communication methods and technology's quickening pace come new and constant challenges to consider when employment issues arise.

Technorati Tags: employment, law, LinkedIn, review, handbook

Modification of a MA child support order was recently discussed in the Massachusetts Appeals Court case, Kenneth R. Whelan vs. Kathleen A. Whelan. One of the issues discussed in this case involved self-employment income as it relates to MA child support obligations. In a footnote, Note (17), the court writes:

(17) New Child Support Guidelines became effective in Massachusetts on January 1, 2009. The new Guidelines define income as "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or State Department of Revenue or other taxing authority." Guidelines I-A (2009). With respect to income from self-employment, the new Guidelines provide that "[i]n general, income and expenses from self- employment or operation of a business should be carefully reviewed to determine the appropriate level of gross income available to the parent to satisfy a child support obligation. In many cases this amount will differ from a determination of business income for tax purposes." Guidelines I-C (2009).

While the prior Child Support Guidelines, "do not specifically provide for deduction of business-related expenses from self-employment income[,]" the court indicated the new MA Child Support Guidelines "clarify" the approach MA courts have taken.

The 2006 Guidelines, in effect at the time of trial, do not specifically provide for deduction of business-related expenses from self-employment income. Indeed, these guidelines list in the definition of income from whatever source both "income from self-employment" as well as, by way of comparison, "net rental income." Guidelines I-A(1), (25) (2006). Nevertheless, we think it is implicit that such expenses may be deducted where they are reasonable and necessary for the production of income, and our decisional law supports this conclusion. See, e.g., Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 406 (1998) (due to lack of substantiation and commingling of personal and business expenditures, judge properly could disregard certain claimed business deductions from husband's gross income or substitute a reasonable figure for others); Maillet v. Maillet, 64 Mass. App. Ct. 683, 689-690 (2005) (remand ordered where financial statement of husband, sole owner of business, set forth income of $800 per week, and "his corporation in 2002 had income of $227,744 exclusive of suspended losses and depreciation").

The court reasoned the test to be applied by a judge in determining income from self-employment is,

...whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes.

While the MA Child Support Guidelines help bring a degree of certainty to Massachusetts child support orders, this case shows the numbers one uses in the child support formula may not necessarily be the same as income reported on tax forms or found in business reports. In self-employment and investment income cases, it's important to be able to articulate what income and expenses should be taken into consideration in determining the income which should be entered into the child support worksheet.

Technorati Tags: MA Divorce, Modification, Self-Employment, Income, Modification

In Coombes v. Florio, 450 Mass. 182 (2007), a physician owed a duty of reasonable care to those foreseeability put at risk by a doctor’s failure to warn the patient of the side effects of the patient's treatment. In Coombes a young boy was struck and killed by a car driven by one taking medications, but who had neither been warned of the medications' side effects, nor been told not to drive while taking these medications. See Massachusetts Bar Association review of Coombes. Thus, liability under Coombes could be extended and include those not having any doctor-patient relationship. A recent case dealing with negligence, duty, and foreseeability sought to expand this holding even further, but it was unsuccessful before the Massachusetts Supreme Judicial Court (SJC).

In Leavitt vs. Brockton Hospital, Inc., Sheila Smith and Karen Sullivan (slip opinion), a pedestrian involved in a car accident had undergone a colonoscopy earlier in the day and was walking home from Brockton Hospital when struck by another vehicle. While heading to the accident's location, a Whitman police cruiser was hit by another vehicle resulting in an officer being seriously and permanently injured. The police officer sued the hospital for negligence claiming they had breached their duty of care, among other things, when they released the previously sedated patient without an escort. The Supreme Judicial Court agreed the case had been properly dismissed by a lower court and upheld that court's decision.

In a footnote, the court noted the different standards for reviewing a motion to dismiss because the standard had changed from the time of the judge's ruling to the time of the SJC's review. Regardless, the court opined this case would have failed under either standard.

After the judge had ruled on the hospital's motion to dismiss, we adopted as applicable to our civil rules the United States Supreme Court's revision of the standard for reviewing the adequacy of a complaint challenged by a motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief . . ."). The hospital does not ask that we apply the new, "stricter" standard. See Flomenbaum v. Commonwealth, 451 Mass. 740, 751 n.12 (2008). The complaint would not survive the hospital's motion to dismiss under either standard.

Technorati Tags: negligence, duty, police, hospital, Coombes

My new Privacy Law and Policy blog is underway. This blog examines privacy law issues that include:

• Privacy Rights
• Privacy Invasions
• Security Breaches and Crimes
• Open Government

I help individuals in civil and criminal matters and represents municipalities and businesses in privacy compliance matters, security breaches, commercial privacy infringements, cybercrimes, and crimes involving privacy issues.

You can also follow Kevin Whitaker on Twitter at http://twitter.com/kevinwhitaker

Massachusetts attorney Kevin Whitaker's new Privacy Law and Policy Blog is live.

Technorati Tags: Privac, Privacy Law, Privacy Lawyer, Privacy Attorney

In Kennedy, an estate tried to recover $402,000 that was paid to an ex-spouse.  In the divorce, the wife gave up her rights to the husband's pension or other work-related benefits. However, the husband failed to remove his ex-wife as the beneficiary of his investment plan assets. Following his death, the funds went to the ex-spouse. Prior to this Supreme Court decision, various courts had reached different conclusions about this type of issue (This post follows my prior post, Rolling Over in His Grave--Another Lesson in Costly Beneficiary Form Mistakes.)

The Court, in Kennedy, found plan benefits can be waived under a divorce decree, however, "...the plan administrator did its statutory ERISA duty by paying the benefits to [the ex-spouse] in conformity with the plan documents.”

So the ex-spouse keeps the money, or does she? A footnote indicates the estate might still be able to pursue an action against the ex-spouse to recover the funds. An analysis at the Scotus Wiki states,

The Court, in a footnote, left open the question of whether the estate could have sued to recover the benefits from Liv after she received them. The footnote mentioned prior rulings that seemed to say that a prior contractual agreement to forfeit funds may be enforceable after the distribution without violating ERISA; once the money is paid out, it loses its ERISA protection, those rulings had indicated.

Beneficiary designation forms may appear simple, but think twice about how your estate plan or divorce relates to them.

Technorati Tags: estate, divorce, beneficiary form, ERISA

What do you do when a problem arises that could harm your reputation? How do you know when it's happening?

For starters, Google alerts provides one tool to keep track of what's being said about you online. A search on twitter might help, too. This list from author, Andy Beal, provides 34 more tools to consider, 34 Online Reputation Management Tools | Small Business Marketing Blog from Duct Tape Marketing.

Beal rightly states:

User generated media, blogs and discussion forums have changed the flow of information about your company forever.

Lee Odden in Basics of Online Reputation Management | Online Marketing Blog, proposes a three step approach: Monitor, Optimize and Engage. To start, Odden suggests monitoring:

• Brands
• Products
• Company
• Key Executives

OK, so once you have the information, now what do you do about it? Visit Odden's post describing more about optimizing and engaging.

In general, when a problem arises, one should consider both legal liability and business reputation issues when choosing the best course of action. Sometimes, however, these different approaches may not agree.

Continue reading "Web Identity Tips for Online Reputation Management" »

Think twice before hitting send. Massachusetts attorney, Robert Ambrogi at Legal Blog Watch, posts Bloggers Have BigLaw Watching Its Back, discussing how lawyers are being careful about what they post in their emails and memos. Ambrogi references an ABA Journal article written by Terry Carter reporting,

...leaking...has law firm leaders exercising caution. ... firms are well aware their private e-mails may end up in the public spotlight....

Carter Clayton an assistant managing partner at WilmerHale is quoted in the ABA article saying her firm now vets all firmwide memos, adding "It could be on a blog," she said. "It makes us careful."

Whether you're a business owner, manager, serve on a board of directors, or otherwise, you have to ask yourself, "Am I ready for this email to become public? Or posted on a blog and published for all to see forever and ever?" Exercise "send" with caution.

The ABA Journal post, Another Federal Judge Allows Twitter Coverage of Trial, discusses the use of twitter media coverage in a federal case involving six accused gang members.  Note, the journalist, not the gang members, was using twitter. Are we seeing the start of a courtroom coverage trend? In January, I posted about a federal judge allowing blog coverage of a trial. While reports of this type appear to be growing, courtroom coverage through new technology is not well received everywhere

In my prior post, I mentioned a Recording Industry Association of America (RIAA) case brought against Joel Tenebaum, a Boston University graduate student (involving alleged illegal music downloading from the internet.) In this case, U.S. District Court Judge Nancy Gertner granted a motion to allow video streaming coverage of the hearing via a webcam. RIAA argued against this and Judge Gertner evenhandedly postponed the hearing to allow an appeal. The hearing, originally postponed until Feb. 24, 2009, has now been postponed even further.

Jaikumar Vijayan, in an informative post, New Hurdle for video streaming order in RIAA piracy case, writes:

The U.S. Court of Appeals for the First Circuit issued an order on Feb. 20 asking both sides in the case to provide their legal comments on a 1996 ban on the use of cameras in the circuit's court rooms.

The appeals court has given Tenenbaum and the music labels 20 days from the order to file the comments, or supplementary briefs, on the likely implications of the 1996 resolution on the present case.

In a separate development, a scheduled hearing of the case Tuesday in a federal district court in Boston, at which the live streaming was to have occurred, has been pushed back to April 30.

I applaud Justice Gertner for her ruling and I hope her decision is upheld. If so, I think it will be interesting to see what people tweet about on twitter while watching the streaming video coverage of an alleged illegal music downloading case. If you think about that idea for a minute, does anyone doubt the web isn't changing things dramatically?

Follow me on twitter.

Recent articles from the ABA Journal touch upon how the use of technology is not just shaping trials and trial techniques, but also how trials are covered and may be covered in the future.

The first article, Judge Explains Why He Allowed Reporter to Live Blog Federal Criminal Trial, discusses an Iowa case where a reporter, Trish Mehaffey, was allowed to use a laptop to cover a tax fraud trial through a live blog.  The practice may be a growing one.

Mehaffey says she’s heard of several reporters allowed to blog from state court proceedings. A few federal judges besides Bennett [the judge above] have also allowed live-blogging of trials.  Accredited journalists were allowed to use laptops and other electronic devices to cover the trial of five men convicted of plotting to attack Fort Dix, according to a court website listing the rules. The media representatives received a password giving them wireless Internet access in the courtroom.

In a second article, US Appeals Court Orders Expedited Briefs in Webcast Challenge, brings us to Boston where use of a webcam was approved to cover a hearing involving an alleged illegal music download case (the hearing has been delayed until Feb. 24 as the Recording Industry Association of America is appealing the judge's decision.) The Boston Globe reports,

The appeals court said ... the question of webcasting raises "subtantial and novel questions," and it has invited groups and individuals to file friend-of-the-court briefs by Jan. 29. The appeals court said it may hold oral arguments, as well.

In a third article, In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook, a link to a Herald Sun article, Lawyers given permission to serve debtors with default judgment through Facebook, discusses how social networks on the web could be making inroads into post judgment issues in Australia.  Here the plaintiff was allowed, by the court, to serve a default judgment through Facebook.

The Facebook profiles showed the defendants' dates of birth, email addresses and friend lists -- and the co-defendants were friends with one another. This information was enough to satisfy the court that Facebook was a sufficient method of communicating with the defendants.

These early cases are examples of the issues likely to come.  Remember, these issues were all approved by a few of today's jurists.  What changes will the Web 2.0 generation of judges and beyond be considering?

Massachusetts Lawyer's Weekly (LW) reports,

The Governor's Council voted 6-2 in favor of Superior Court Judge Ralph
D. Gants' nomination to a seat on the Supreme Judicial Court.

In a second story LW states,

Superior Court Judge Margaret R. Hinkle will succeed Judge Ralph D. Gants as head of the Business Litigation Session.

This Mass PI law post is last in a series of five that revealed some of the themes to be on the lookout for when settling your car accident case (or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.)

Wolf in sheep’s clothing – The friendly insurance adjuster (from the car that hit you) wants to check in on you and see how you’re doing.  In order to help you and get your bills paid, they’d like to come visit you at your home and go over some simple forms (some don’t even announce their visit and just show up).  Perhaps the tape recorder comes out, perhaps the wolf asks the questions in a cunning way, perhaps you're left wondering what just happened or even worse, perhaps you think he/she seemed like a nice person.  If so, there may not be any pleasant fairy tale endings in store for you.  If the wolf's already been around, get help quickly you're case becomes his next snack.

This Mass PI law post is the fourth in a series of five discussing themes to watch out for when settling your car accident case (or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.)

Fear of trial – How far do you want to take your case? Are you willing to lose it all?  In addition, are you willing to go through all the pre-trial actions and wait for a trial date in the distant future? These are fears that can be relied on and can often lead to low settlement offers being offered, and unfortunately too often, accepted.

Next installment: Part 5 -- Wolf in Sheep's Clothing

What is considered "income" in a Massachusetts divorce for the purposes of Child Support under the new Child Support Guidelines Effective January 1, 2009?

For purposes of these guidelines, income is defined as gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority. Those sources include, but are not limited to, the following:

1. (a) salaries, wages, overtime and tips; (b) income from self employment;
2. commissions;
3. severance pay;
4. royalties;
5. bonuses;
6. interest and dividends;
7. income derived from businesses/partnerships;
8. social security excluding any benefit due to a child’s own disability;
9. veterans’ benefits;
10. military pay, allowances and allotments;
11. insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses;
12. workers’ compensation;
13. unemployment compensation;
14. pensions;
15. annuities;
16. distributions and income from trusts;
17. capital gains in real and personal property transactions to the extent that they represent a regular source of income;
18. spousal support received from a person not a party to this order;
19. contractual agreements;
20. perquisites or in-kind compensation to the extent that they represent a regular source of income;
21. unearned income of children, in the Court’s discretion;
22. income from life insurance or endowment contracts;
23. income from interest in an estate, either directly or through a trust;
24. lottery or gambling winnings received either in a lump sum or in the form of an annuity;
25. prizes or awards;
26. net rental income;
27. funds received from earned income credit; and
28. any other form of income or compensation not specifically itemized above.

The New Guidelines also discuss Overtime and Secondary Jobs, Self-Employment or Other Income, Unreported Income, and Non-Parent Guardian Income.

Craig Ball, in his article, GPS Evidence Might Drive Your Case Home, writes:

Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went
next.

With the FCC's rules getting stricter on cell phones and locating services (as well as GPS systems in corporate vehicles or being used by consumers), this may be another area to keep watching in upcoming civil and criminal cases in Mass. and around the country.

A small sampling of other blogs or posts from other blogs discussing GPS and various civil and criminal legal issues are:

• GPS Tracking Systems
• Use of GPS Tracking Devices in the Workplace - Some Things Employers Should Consider
• Law - "Police Using G.P.S. Units as Evidence in Crimes"
• GPS: Privacy Law Blog
• GPS Trackers Foil Cheating Spouses
• John Burkoff on GPS and Search Law
• Stalkers Use GPS to Track Victims

This Massachusetts PI law post is the third in a series of five addressing some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.

Wait them out – A driver injured when another car struck her from behind suffered injuries and incurred minor damages.  The medical bills were just under the threshold for a claim to be pursued ($2,000 at the time).  Don’t expect the insurance company to tell you about the out of pocket expenses you can be reimbursed for and make your claim actionable.  In other instances, they can just wait you out and offer to make a small payment knowing you are getting collection letters and want to protect your credit.  If you don't know about the tort threshold is, are close but not sure what counts, or concerned about your unpaid bills, then consult with a MA personal injury attorney.

Next installment or Part IV: Fear of Trial

Did you know there are lawyers in Massachusetts who are qualified for offering services in certain Probate and Family Courts on a limited basis?  This allows you to hire a lawyer to help you with some things but not others.  For instance, a lawyer could help you draft a complaint for divorce, a probate petition, a license to sell real estate, or coach you on evidence matters.  Some could even be hired for a day or part of day to attend a motion, deposition, conference, mediation, hearing, or trial. 

The goal of this program is to find ways for people to gain access to qualified attorneys on an as needed basis.  The philosophy is, some representation is better than no representation.  You can read more about this program at the Massachusetts Bar Association site or visit here for various orders from the SJC extending the program in certain counties through 2008.

"Yes he did." Now with respect to the judiciary, "Yes he can," remains a theme likely to apply without much opposition. Bloomberg.com: News reports

The election of Barack Obama and a Democratic surge in the legislative branch could signal a shift in the nation’s court system. As President, Obama will be able to appoint federal, and possibly Supreme Court,judges that are more supportive of consumer and employee rights than many currently on the bench. Equally, a Democratic majority in the Senate should lead to swift confirmation of appointees.

Greg Stohr's article provides more analysis and context for court's future under an Obama Administration.

This post is the second in a series of five that addresses some of the themes to be on the lookout for when settling your car accident case (or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.)

Blame the victim -- The at-fault driver’s insurance company tries to pressure you into a speedy, unfair settlement and if you don’t agree they threaten to sue you. The theory becomes you’ll get nothing, and be responsible for the unpaid bills. I have an elderly client they tried this with. She was parked at a light and rear-ended but they tried to bully her and claim it was “her” fault. Don't let them push you around. If it starts, end the conversation and get an attorney.

Next installment #3 -- Wait them out.

Auto accident laws (in Massachusetts or anywhere for that matter) should exist to protect consumers involved in auto accident claims and settlements, but the victims of car accident injuries will likely tell you the process can be confusing and daunting.  For many, it appears, the laws protect the insurers more than the injured.

Massachusetts personal injury attorneys help balance the equation against the powerful insurance companies as well as keep in check the unfair or deceptive practices that can be employed.  Without a MA lawyer to help assess a Mass. personal injury case (property damage, lost wages, car accident injuries, insurance, medical bills, out of pocket costs, prescriptions, …), how does the average consumer know if a settlement of their car accident claim is in their best interests?  The insurance company/industry wants you to believe they can help you with this and you don't need a lawyer.

This post is the first of five that addresses some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.  In the posts to follow, I'll touch on a few general themes such as: lowball offers, "friendly" adjusters (who aren't your friend), delay tactics, blaming the victim, and fear of trials.  While having an attorney won't necessarily prevent these tactics from arising, your lawyer can deal with these head on and refocus the discussion back on obtaining the highest value for your case.  In sum, the theory behind these posts is: "forewarned is forearmed."

"Tort reform" sounds quaint, until you look under the hood and see what's really driving the engine.

Lawyers and the battles they fight on behalf of wronged clients are what often serves to keep the system accountable. Detractors say it's just about the money and greedy lawyers, but often the crux of the lawsuit isn't about money, it's about standing up for respect, integrity, and human decency.

Sure, sometimes this fight can only change an individual wrong, but other times fighting the good fight can change a broken system. Broken systems surround us and are out of balance -- medical care for the elderly is just one example that comes readily to mind.

It doesn't matter if you're from Massachusetts or Mississippi, end of life decisions will never be easy, but they should be made with proper medical evidence as this Mississippi case illustrates. 

The Mississippi Supreme Court recently upheld a $4 million award to the family of a woman who was misdiagnosed with pancreatic cancer and then given a lethal dose of painkillers.  An autopsy showed the woman never suffered from cancer.  The daughter best summed it up, 'a simple lab test could have stopped this from happening.' 

This should give you pause the next time you hear someone say, "we could run this lab test or that, but it's probably not going to show ..."  If there's an option, why not run the test?  Who is really being inconvenienced?  Is it wise to place all our faith and offer complete deference to the "professionals" making important medical decisions about care. A healthy dose of "prove it to me" isn't a bad thing, especially when we're talking about life and death. 

Sure it's easy to dismiss junk lawsuits, but cases like this above demonstrate that sometimes the only place to make a difference and force real change is to hit them in their pockets -- and hit them big.  Now maybe a few more life or death tests will get ordered, maybe it will take even more verdicts to send a lasting message. 

Of course, there are powerful interests that would like a limit on their economic liability -- they try to sell this in words like "reform," but it's really about protecting their profits and ignoring the pain caused to individuals who will undoubtedly suffer when greed and bonuses drive decisions over common decency and respect.

Employees and waitstaff in Mass. seem to be finding increasing success through lawsuits and settlements over undistributed tips being handled by lawyers well versed in the Massachusetts tips statute.

A Massachusetts-based luxury resort and spa will reportedly pay $14.7 million to resolve claims it wrongly kept employees from receiving tips. According to the Boston Globes' coverage of the lawsuit, guests of Canyon Ranch were charged 18% in service charges, but those charges were not given to workers at the resort/spa. The settlement is reported to be awaiting the approval of a federal judge according to the Globe's Jonathan Saltzman who had written an article covering the Massachusetts tips law and Starbucks claims in March.

At the heart of these issues lies the little-known Massachusetts tips statute:

Chapter 149: Section 152A. Service charges and tips; tip pools; penalties

Section 152A. (a) As used in this section, the following words, unless a different meaning is required by the context or is specifically prescribed, shall have the following meanings:—

“Wait staff employee”, a person, including a waiter, waitress, bus person, and counter staff, who: (1) serves beverages or prepared food directly to patrons, or who clears patrons’ tables; (2) works in a restaurant, banquet facility, or other place where prepared food or beverages are served; and (3) who has no managerial responsibility.

“Service employee”, a person who works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers, but who works in an occupation other than in food or beverage service, and who has no managerial responsibility.

“Service bartender”, a person who prepares alcoholic or nonalcoholic beverages for patrons to be served by another employee, such as a wait staff employee.

“Employer”, any person or entity having employees in its service, including an owner or officer of an establishment employing wait staff employees, service employees, or service bartenders, or any person whose primary responsibility is the management or supervision of wait staff employees, service employees, or service bartenders.

“Patron”, any person who is served by a wait staff employee or service employee at any place where such employees perform work, including, but not limited to, any restaurant, banquet facility or other place at which prepared food or beverage is served, or any person who pays a tip or service charge to any wait staff employee, service employee, or service bartender.

“Service charge”, a fee charged by an employer to a patron in lieu of a tip to any wait staff employee, service employee, or service bartender, including any fee designated as a service charge, tip, gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a wait staff employee, service employee, or service bartender in lieu of, or in addition to, a tip.

“Tip”, a sum of money, including any amount designated by a credit card patron, a gift or a gratuity, given as an acknowledgment of any service performed by a wait staff employee, service employee, or service bartender.

(b) No employer or other person shall demand, request or accept from any wait staff employee, service employee, or service bartender any payment or deduction from a tip or service charge given to such wait staff employee, service employee, or service bartender by a patron. No such employer or other person shall retain or distribute in a manner inconsistent with this section any tip or service charge given directly to the employer or person.

(c) No employer or person shall cause, require or permit any wait staff employee, service employee, or service bartender to participate in a tip pool through which such employee remits any wage, tip or service charge, or any portion thereof, for distribution to any person who is not a wait staff employee, service employee, or service bartender. An employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.

(d) If an employer or person submits a bill, invoice or charge to a patron or other person that imposes a service charge or tip, the total proceeds of that service charge or tip shall be remitted only to the wait staff employees, service employees, or service bartenders in proportion to the service provided by those employees.

Nothing in this section shall prohibit an employer from imposing on a patron any house or administrative fee in addition to or instead of a service charge or tip, if the employer provides a designation or written description of that house or administrative fee, which informs the patron that the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.

(e) Any service charge or tip remitted by a patron or person to an employer shall be paid to the wait staff employee, service employee, or service bartender by the end of the same business day, and in no case later than the time set forth for timely payment of wages under section 148.

(f) Whoever violates this section shall be subject to all of the civil and criminal penalties and remedies set forth in section 27C. Any person or employer who violates this section shall make restitution for any tips accepted, distributed or retained in violation of this section, together with interest thereon at the rate of 12 per cent per annum. An employee claiming to be aggrieved by a violation of this section may proceed pursuant to the second paragraph of section 150. The attorney general or, under said section 150, an employee may bring an action under this section within 3 years of any violation of this section.

(g) No employer or person shall by a special contract with an employee or by any other means exempt itself from this section.

In fiscal year 2007, the EEOC reportedly received 30,510 charges of race discrimination and resolved 25,882 race charges in FY 07 recovering $67.7 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). 

Today's question: Can a Massachusetts employer remove an employee or isolate a protected class member in an employment context?

The EEOC website offers the following examples demonstrating this prohibited conduct is employment discrimination. Thus an employee in Massachusetts facing these circumstances should consider seeking the help of an employment lawyer or consider pursuing a claim if they are being discriminated against in one of these manners in Mass.

Segregation and Classification of Employees

Title VII is violated where employees who belong to a protected group are segregated by physically isolating them from other employees or from customer contact. In addition, employers may not assign employees according to race or color. For example, Title VII prohibits assigning primarily African-Americans to predominantly African-American establishments or geographic areas. It is also illegal to exclude members of one group from particular positions or to group or categorize employees or jobs so that certain jobs are generally held by members of a certain protected group. Coding applications/resumes to designate an applicant's race, by either an employer or employment agency, constitutes evidence of discrimination where people of a certain race or color are excluded from employment or from certain positions.

If you look at the MCAD's Fair Employment Law Poster hanging up in most places of employment you will note it states:

IT IS UNLAWFUL:

• to print or circulate any advertisement or use any application form which directly or indirectly specifies any limitation on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, military service, age, ancestry or disability.

• to discharge or reuse to hire any individual on the basis of their race, color, religious creed, national origin, sex, sexual orientation, genetic information, military service, age, ancestry or disability.

• to discriminate against any individual in matters relating to compensation, terms, conditions, or privileges of employment because of their race, color, religious creed, national origin, sex, sexual orientation, genetic information, military service, age, ancestry or disability. ...
  

Further,

RETALIATION:

It is illegal to retaliate against any person because s/he has opposed any practices forbidden under this Chapter or because s/he has filed a complaint, testified, or assisted in any proceeding before the Commission. It is also illegal to aid, abet, incite, compel or coerce the doings of any of the acts forbidden under this Chapter or to attempt to do so.

Thus, not only is discrimination prevented, but so is retaliating against those who are involved in discrimination cases.  That is, there's a separate and distinct complaint one may have against an employer who takes an adverse employment action against an employee for asserting their rights and advancing their employment discrimination claims.  If you're interested in retaliation issues, you may want to see my prior post (with links at its bottom) for more discussion on retaliation claims and trends in employment matters.

More employee retaliation rights in the employment context may be seen as emerging from the Supreme Court's questioning during a recent case, Crawford v. Nashville and Davidson County. Tony Mauro, writing for the Legal Time in Supreme Court Hears Environmental, Employment Discrimination Cases, writes:

And in the employment case, Crawford v. Nashville and Davidson County, lawyers for a Nashville, Tenn., school employee and for the Bush administration appeared to persuade the Court that Title VII of the Civil Rights Act protects employees from retaliation even when they complain about sexual harassment during an internal investigation -- before any formal charges are made.

...

In the employment case, the Court has in recent years been favorable to claims by those who suffer retaliation for complaining about Title VII workplace discrimination in the context of Equal Employment Opportunity Commission investigations. But the case before the Court involves the firing of someone who complained about sexual harassment during an internal investigation before any EEOC charges were filed -- a not uncommon scenario.

Vicky Crawford, the Nashville school employee in the case, complained about a supervisor's lewd behavior in an interview with a human resources department official, but made no formal charges and was later fired. The 6th U.S. Circuit Court of Appeals ruled that she was not protected from retaliation because her complaints did not amount to the kind of "active opposition" to school policies that Title VII requires.

University of Washington School of Law professor Eric Schnapper, a veteran advocate for employees in civil rights cases, argued strenuously that the law covers Crawford's situation because in making her complaints, she was actively objecting to her employers' conduct.

Justices peppered him with several hypotheticals, but Schnapper held to his position. Arguing in support of Crawford, assistant to the solicitor general Lisa Blatt also said Crawford should be protected against retaliation.

Francis Young, an assistant city attorney for Nashville, argued that Crawford did not meet the "opposition" requirement of the law because she did not make formal charges of sexual harassment.

Justice John Paul Stevens and other justices reacted incredulously. Noting that Crawford had told her harasser to "get the hell out of my office," Stevens said, "That's an active opposition, it seems."

For a few related posts I've written showing a trend in employment cases, see:

• Family Medical Leave Act (FMLA) Firing and Employment Retaliation Claims
• Religious Discrimination and EEOC's Lists of "Best Practices" for Employers and Employees
• Elder Employees Pick Up Another Employment Law Win at the Supreme Court
• Discrimination Law Gets Active. Discrimination Cases Extend Protected Rights in Age and Racial Discrimination. "Me too" Evidence an open Q. Bush signs law on Genetic Discrimination

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.

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.

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.

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.

Personal injury lawyers, in Massachusetts often get a bad rap with "ambulance-chaser" being a well-known knock on PI lawyers. Did you know the moniker "ambulance-chaser", however, might be better suited for the other side of the courtroom in car accident case, not the plaintiff's?

Last night I was reviewing a claim against a reckless driver, and once again I was struck by how quickly the defendant's insurance company had visited my client and manipulated her into signing a medical authorization.

As I was thinking about this family, I began seeing the young girl sitting on her family couch while crying in pain. She's sitting alongside her father who just wants to take care of her while the cagey insurance adjuster pushes and pushes for more and more information against her until he has what he came for and leaves -- it reminds me of how aggressive and abusive the real ambulance chasers of today are.(p/>

There was no reason for this victim to:

• Meet with this insurance adjuster, especially at her home while she recovers;
• Not have a lawyer with her;
• Provide a statement; or
• Authorize complete access to all of her private medical records.

This story, however, isn't unfamiliar or uncommon. The insurance company had taken the all too familiar 'wolf in sheep's clothing' approach. Luckily the young girl's father found this whole approach odd. Once the shock of it all left, he questioned why he had let this man into his home in the first place. Once I was contacted, I was able to revoke the medical authorization immediately and order the investigator to stop contacting or harassing this family at their home.

If you've been injured in an accident and don't have an attorney, don't allow the following to be used to coerce your in a deceitful manner:

• Shock of the accident,
• Guilt,
  
• Immediacy of an unexpected visit,
• Caring or friendly approach,
• Assurance that you don't need a lawyer,
• Your desire to be helpful,or
• Your hope to resolve things quickly
  

If you have already met with their adjuster before being represented by legal counsel, then have your lawyer get a copy of your statement and terminate any authorizations immediately. By acting quickly you may be able to limit the disclosures that probably don't need to be made.

Wilson & Whitaker, LLC represents people who have been harmed or suffered a loss in a personal injury or wrongful death case involving a Massachusetts transportation or auto accident.

An interesting article on law.com recently discussed the issue of lawyers asking jurors about their medication use. With so much of the population on medication, is drug use something that should be questioned of potential jurors? If so, how far should questioning go? Do we ask a general question? Whether the use of medication will interfere with a juror's duties, or do we delve deeper into more specific questions about the person, their conditions, and their treatments? The article, by Julie Kay, offers pros and cons while raising issues likely to continue making headlines(juror falling asleep in murder trial, someone goes off their medications during trial...).

As an attorney-advocate there may be times when seeking this information makes sense for my client. As the lawyer for my client I have the duty the pursue what's in my clients best interests. Personally, however, I think when we start asking jurors to divulge what medication they're taking, we're crossing a finer line. We have to wonder if the jurors' themselves aren't thinking, "Who is actually on trial, here?" Of course there are going to be exceptions to every rule, but speaking from a policy perspective, I'd rather have privacy rights' invasions remain the limited exceptions and not become the standard rule.

"Mediation’s Seven Deadly Sins - Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side" was the name of a discussion sponsored by the Section of Dispute Resolution held during the 2008 Annual American Bar Association Meeting in New York.

While mediation provides an opportunity to examine settlement, it also provides an opportunity to examine the other side, their case, and how a party may respond in court. One of the panelists, Joel Davidson, said

He sees the mediation process as a chance to get his point across in a specific way. He said he likes to show the person on the other side that I know the issue well.

... mediation provides the opportunity to examine how clients handle themselves. If a client does not come across rationally during mediation, I know that in advance of a trial...

Mediation, however, can also provide a receptive forum for an apology. Often parties want to apologize but are told not to apologize by their attorneys. The attorneys often fear an apology could be used as an admission of liability against them in court and/or reduce their bargaining position in settlement discussions. Handled properly, however, a sincere apology during mediation can sometimes go a long way towards resolving a a brooding conflict. Davidson notes mediation may,

... provide an opportunity for clients to either apologize for a wrong or acknowledge a misunderstanding. This simple communication may be enough to move a case toward settlement.

More and more, I'm finding people want to resolve their Massachusetts divorce, personal injury, or business case in mediation. There are a number of factors that contribute to this (control over the outcome, avoid formality of court, ease of scheduling, ...), but I'm sensing the Mass. economy is playing a role in this increase too.

People seem inclined to seek resolving their MA disputes fairly and quickly while avoiding the high costs and endless delays contentious litigation can sometimes bring. While not all cases can be resolved in mediation, many can. There's really nothing to lose in mediation. In the end, the parties have to agree on the ultimate solution in mediation (they can have an attorney review their agreement first or participate in the mediation with them).

I've been thinking about this more and more as I've begun to formalize our mediation practice offerings at Wilson & Whitaker, LLC. I've created a temporary website focusing solely on mediation as our Weymouth law firm continues to expand our mediation services. Let me know your thoughts and what questions you may have about mediation practices or disputes Massachusetts lawyers deal with.

USA Today's article, Hospital death rates unveiled for first-time comparison, has tools that allow users to compare mortality rates for hospitals near you:

• for heart attacks, heart failure, and pneuomnia on a map,
• compare hospitals in or near certain zip codes,
• or look at standouts (those with the highest and lowest death rates).

While data alone never tells the whole story, the use of statistics and measurement is growing across all fields and professions. The cultural change emerging with technology and collaboration will only continue to fuel this further. Law, politics, and other fields will not be far behind. Just look at sports as an example of how professionals and institutions are measured continuously. But is a focus on numbers alone good for us in the long run? How will this run into privacy concerns? Will Big Brother not only be always watching, but always measuring too? Time will tell how the law raises to these challenges and others.

When a Massachusetts will is contested by lawyers in court for "undue influence", who has to prove what?

A recent Massachusetts Appeals Court case Germain v. Girard deals with a will, a trust, and issues such as: presumptions and burdens of proof (as well as offers of proof.) At the core of the case is a claim of undue influence and the status, if any, of a fiduciary. The case is interesting on its facts but also in the implications one can read from the decision.

 Factual Summary

 George had a will leaving everything to Theresa (Wife).  George gets sick but has a potential big lawsuit due to his condition.  Theresa has a daughter, Paula (Daughter), who is married to Alan.  Alan helps an aging George and Theresa over the years with various financial matters.  Alan become a trusted adviser to George. Alan contacts lawyers for George (about the potential lawsuit). George decides to change his estate documents based on the potential claim. Alan has lawyers draw up a new will and trust for an ill George.  An attorney (who had never spoken to George, only Alan) visits George in the hospital and the new estate planing documents are signed.  Under a new trust, instead of Wife getting everything (as she did under the old will), the anticipated significant settlement proceeds will be placed in a trust. Under the trust, Wife will have no control over the trust or the trust's funds.  Instead, Wife will be entitled to funds during her lifetime, however, these amounts are discretionary and decided solely by Daughter (in Daughter's role as the Trustee.)  Daughter, in addition to being a trustee, is also an interested remainder beneficiary.  That is, after Wife passes away, Daughter stands to receive a significant amount of money so long as it remains unspent during Wife's lifetime. While there are other facts involved, these give us a background for our general discussion on will contests and undue influence claims in Massachusetts

 
Review of Law as Examined by the Appeals Court:

In a will contest involving allegations of undue influence, the burden of proof ordinarily rests with the party contesting the will. … However, in cases involving a fiduciary, the fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations. … [quotes removed]

Burden of Proof

Burdens of proof are topics people don’t think of much in civil cases but we always seem to think of them in criminal cases. We all know the mantra that the prosecution has the burden of proving the defendant’s guilt beyond reasonable doubt.  This means the prosecution has the affirmative burden of proving the defendant’s guilt. 
The defendant does not need to prove his or her innocence.  The question is not if the defendant is innocent, the fundamental question is, “Did the prosecution prove guilt?”  Here the court is saying when someone claims undue influence in a will contest, then the person making the claim usually has the duty to prove the charge of undue influence.  However, this does not apply when a fiduciary is involved and the fiduciary also benefits from the transaction.  In these cases, the fiduciary is assigned the burden of proof and the fiduciary must prove the transaction did not violate the fiduciary’s obligations.

Ultimately, Germain v. Gerad largely comes down to who has the burden of proving what.  The trial judge found the Wife had the duty, but the Appeals Court disagreed.  Instead the Appeal Court discussed the uncertain nature of “fiduciary” relationships and then concluded that the burden of proof falls upon Daughter to prove Alan did not exert undue influence over George.  In reviewing this area of law, the court states:

 "Although some fiduciary relationships, such as that between guardian and ward, are created by law, others arise from the nature of the parties' interactions.  The 'circumstances which may create a fiduciary relationship are so varied that it would be unwise to attempt the formulation of any comprehensive definition that could be uniformly applied in every case.'" … "Where the fiduciary relationship is not one created by law, the existence of the relationship ordinarily is a mixed question of law and fact for which the party asserting the relationship bears the burden.” …

The court found the,

 … [trial] judge's subsidiary findings leave no doubt that Alan stood in a fiduciary capacity toward George in the preparation of George's 2004 will and related documents.  The judge found that George placed his trust and confidence in Alan, based upon a close relationship over ten years.  George trusted Alan to manage his household affairs and expenses while George and Theresa were in Florida for significant portions of the year.  Of even greater significance with reference to the present case, George entrusted to Alan all responsibility for overseeing the preparation of his 2004 will and related documents, and George's deteriorating health left him wholly dependent on Alan's assistance toward that end.

There is likewise no doubt that Alan stood to benefit from the transaction in which he was involved.  Though Alan was not named a beneficiary under the will or the trust, his wife, Paula, was.  Under the principles enunciated in Cleary … his status as a fiduciary subjects his actions to heightened scrutiny.  Though Alan was not a party to the petition (by reason of the fact that he was not a beneficiary under the will), in circumstances where a fiduciary stands to receive a benefit indirectly we see no reason why the burden shifting prescribed by Cleary … should not be applied to the direct beneficiary (here Paula) from whom the fiduciary's (here Alan's) indirect benefit derives.  Accordingly, under Cleary, the judge should have placed on Paula the burden of establishing that Alan did not exert undue influence on George in connection with the 2004 will and trust.

 The court discussed 4 considerations that are usually present in a case of undue influence:

1. unnatural disposition has been made,
2. by a person susceptible to undue influence to the advantage of someone,
3. with an opportunity to exercise undue influence, and
4. who in fact has used that opportunity to procure the contested disposition through improper means.'" 

The court found:

George's rapidly deteriorating health, combined with the absence of any direct communication between him and the attorneys preparing his will, left him vulnerable to Alan's influence, and Alan's role in initiating contact with his own attorneys, and thereafter conducting all communications with them, clearly gave him the opportunity to exert such influence.

Because the trial judge placed the burden of proof on the wrong party, and because there was evidence to support a contrary conclusion, his conclusion that there was no undue influence cannot stand. 

 Other Matters and Practice Considerations:

Trustees as Later Beneficiaries

The court stated,

…Paula's dual roles as trustee and remainderman create an obvious conflict of interest which, though not improper per se, created an incentive for her to preserve rather than distribute the trust corpus.

What does this mean for estate plans? Often an adult child or children are named trustee(s) of the parent's trust during the parents' lifetime. Following the parents' deaths, the children become beneficiaries. How is this "obvious conflict of interest" to be handled under best practices?  Anyone considering becoming a trustee and a beneficiary may want to explore these issues in greater detail. 

Offers of Proof and Failures to Make Them Can Cost You Your Case

The Appeals Court discussed an evidentiary issue that all trial lawyers and pro se litigants (self-represented) need to take note of.  In this case, the Wife claimed the judge made an error by, “refusing to allow Dr. Howard Sachs [her expert witness] to offer his opinion regarding George's testamentary capacity to execute the 2004 will and related documents..." She did not, however, make an offer of proof at trial to indicate what this expert's testimony would have been.  The court held:

Absent an offer of proof, she cannot demonstrate that she suffered any prejudice as a result of the challenged evidentiary ruling.  … Her contention that the judge erred in finding that George possessed testamentary capacity fails as well; to the extent the contention rests on her assertion that Dr. Sachs's excluded testimony would have dictated a contrary conclusion, it rests on speculation (in the absence of an offer of proof) concerning what his testimony would have been.

What does this mean? The court is saying, if Wife wanted to rely on the Doctor’s expert testimony to prove something then she should have made an “offer of proof” (when the Doctor’s testimony was not allowed at trial.)  What’s this “offer of proof?”  It's basically the testimony or evidence that's being excluded or what would have been shown if it had been allowed.  As you can guess, failure to address this issue, that is, to make a timely offer of proof, can cost you a case.  Thus, since Wife’s argument rested on Doctor’s testimony, the argument fails because the testimony was not allowed.  In this case, you can’t appeal the suppression of an opinion when it wasn't declared what the opinion would prove.  There's an important lesson to be learned by all – make sure you make an offer of proof when the judge rules against you, because failure to do so may leave you with nothing to stand on down the road.

What Happens Next - Remand and The Role of the Different Courts?

So you ask, how does the story end? I don't know, at least, not yet. Following an appeal a case may be remanded. This means the case is sent back to trial court for additional actions based on the appellate court's opinion. This is an example of how in our judicial system appellate courts generally rule on questions of law, while facts are decided by judges or juries at the trial court. The situation can be tricky, however, when the line between the two is blurred or not well defined. Recall the court's word's from above:

 Although some fiduciary relationships, such as that between guardian and ward, are created by law, others arise from the nature of the parties' interactions.  The 'circumstances which may create a fiduciary relationship are so varied that it would be unwise to attempt the formulation of any comprehensive definition that could be uniformly applied in every case.' … Where the fiduciary relationship is not one created by law, the existence of the relationship ordinarily is a mixed question of law and fact... …

From the SJC, a Diagram (see below) showing the Massachusetts Court System. Also, a resource titled, Representing Yourself in a Civil Case: Things to Consider When Going to Court.

While Massachusetts discrimination claims are often commenced under state discrimination laws (before the Massachusetts Commission Against Discrimination or in Superior Court), federal laws also exist and can often overlap or provide additional context for interpreting or enforcing state laws. For instance, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) are federal laws that cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

One of the lesser discussed discrimination prohibitions contained in Title VII concerns religious discrimination. While discrimination based on religion is seen less frequently than
other types of discrimination, its incidence of reporting has been
rising. Some attribute this to changes in the workforce,
attitudes post 9/11, and the increased attention focused on immigration issues. Perhaps due to these changes and others, the Equal Employment Opportunity Commission (EEOC) has released an updated Compliance Manual (PDF) covering religious discrimination. The newly revised "Section 12" (7/22/2008) provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion.

The revision includes 55 examples relating to religious discrimination issues and lists "best practices" for employers and HR professionals to be aware of (see list of best practices below).

The Section is organized in parts:

1. I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.
2. II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
3. III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
4. IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
5. V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

The Overview states:

Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.

Some general areas include:

Prohibited Conduct

Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of “quid pro quo” harassment may also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.

National Origin, Race, and Color

Title VII’s prohibition against religious discrimination may overlap with Title VII’s prohibitions against discrimination based on national origin, race, and color. Where a given religion is strongly associated – or perceived to be associated – with a certain national origin, the same facts may state a claim of both religious and national origin discrimination. All four bases might be implicated where, for example, co-workers target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his religion, national origin, race, and/or color.

Retaliation

Title VII prohibits retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity. Protected activity consists of opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes or of filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute. EEOC has taken the position that requesting religious accommodation is protected activity.

Employer Best Practices

• Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.
• In conducting job interviews, employers can ensure nondiscriminatory treatment by asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question.
• Employers can reduce the risk of religious discrimination claims by carefully and timely recording the accurate business reasons for disciplinary or performance‑related actions and sharing these reasons with the affected employees.
• When management decisions require the exercise of subjective judgment, employers can reduce the risk of discriminatory decisions by providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues.
• If an employer is confronted with customer biases, e.g., an adverse reaction to being served by an employee due to religious garb, the employer should consider engaging with and educating the customers regarding any misperceptions they may have and/or the equal employment opportunity laws.

• Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.
• If harassment is perpetrated by a non-employee assigned by a contractor, the supervisor or other appropriate individual in the chain of command should initiate a meeting with the contractor regarding the harassment and demand that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned by the contractor.
• To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.
• Employers should encourage managers to intervene proactively and discuss with subordinates whether particular religious expression is welcome if the manager believes the expression might be construed as harassing to a reasonable person.
• While supervisors are permitted to engage in certain religious expression, they should avoid expression that might – due to their supervisory authority – reasonably be perceived by subordinates as coercive, even when not so intended.

Reasonable Accommodation

• Employers should inform employees that they will make reasonable efforts to accommodate the employees’ religious practices.
• Employers should train managers and supervisors on how to recognize religious accommodation requests from employees.
• Employers should consider developing internal procedures for processing religious accommodation requests.
• Employers should individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate.
• Employers and employees should confer fully and promptly to the extent needed to share any necessary information about the employee’s religious needs and the available accommodation options.
• An employer is not required to provide an employee’s preferred accommodation if there is more than one effective alternative to choose from. An employer should, however, consider the employee’s proposed method of accommodation, and if it is denied, explain to the employee why his proposed accommodation is not being granted.
• Managers and supervisors should be trained to consider alternative available accommodations if the particular accommodation requested would pose an undue hardship.
• When faced with a request for a religious accommodation which cannot be promptly implemented, an employer should consider offering alternative methods of accommodation on a temporary basis, while a permanent accommodation is being explored. In this situation, an employer should also keep the employee apprised of the status of the employer’s efforts to implement a permanent accommodation.

Undue Hardship

• The de minimis undue hardship standard refers to the legal requirement. As with all aspects of employee relations, employers can go beyond the requirements of the law and should be flexible in evaluating whether or not an accommodation is feasible.
• An employer should not assume that an accommodation will conflict with the terms of a seniority system or CBA without first checking if there are any exceptions for religious accommodation or other avenues to allow accommodation consistent with the seniority system or CBA.
• An employer should not automatically reject a request for religious accommodation just because the accommodation will interfere with the existing seniority system or terms of a CBA. Although an employer may not upset co-workers’ settled expectations, an employer is free to seek a voluntary modification to a CBA in order to accommodate an employee’s religious needs.
• Employers should train managers to be aware that, if the requested accommodation would violate the CBA or seniority system, they should confer with the employee to determine if an alternative accommodation is available.
• Employers should ensure that managers are aware that reasonable accommodation may require making exceptions to policies or procedures that are not part of a CBA or seniority system, where it would not infringe on other employees’ legitimate expectations.

Schedule Changes

• Employers should work with employees who need an adjustment to their work schedule to accommodate their religious practices.
• Notwithstanding that the legal standard for undue hardship is “more than de minimis,” employers may of course choose voluntarily to incur whatever additional operational or financial costs they deem appropriate to accommodate an employee’s religious need for scheduling flexibility.
• Employers should consider adopting flexible leave and scheduling policies and procedures that will often allow employees to meet their religious and other personal needs. Such policies can reduce individual requests for exceptions. For example, some employers have policies allowing alternative work schedules and/or a certain number of “floating” holidays for each employee. While such policies may not cover every eventuality and some individual accommodations may still be needed, the number of such individual accommodations may be substantially reduced.

Voluntary Substitutes or Swaps

• An employer should facilitate and encourage voluntary substitutions and swaps with employees of substantially similar qualifications by publicizing its policy permitting such arrangements, promoting an atmosphere in which substitutes are favorably regarded, and providing a central file, bulletin board, group e-mail, or other means to help an employee with a religious conflict find a volunteer to substitute or swap.

Change of Job Assignments and Lateral Transfers

• An employer should consider a lateral transfer when no accommodation which would keep the employee in his or her position is possible absent undue hardship. However, an employer should only resort to transfer, whether lateral or otherwise, after fully exploring accommodations that would permit the employee to remain in his position.
• Where a lateral transfer is unavailable, an employer should not assume that an employee would not be interested in a lower-paying position if that position would enable the employee to abide by his or her religious beliefs. If there is no accommodation available that would permit the employee to remain in his current position or an equivalent one, the employer should offer the available position as an accommodation and permit the employee to decide whether or not to take it.

Modifying Workplace Practices, Policies, and Procedures

• Employers should make efforts to accommodate an employee’s desire to wear a yarmulke, hijab, or other religious garb. If the employer is concerned about uniform appearance in a position which involves interaction with the public, it may be appropriate to consider whether the employee’s religious views would permit him to resolve the religious conflict by, for example, wearing the item of religious garb in the company uniform color(s).
• Managers and employees should be trained not to engage in stereotyping based on religious dress and grooming practices and should not assume that atypical dress will create an undue hardship.
• Employers should be flexible and creative regarding work schedules, work duties, and selection procedures to the extent practicable.
• Employers should be sensitive to the risk of unintentionally pressuring or coercing employees to attend social gatherings after the employees have indicated a religious objection to attending.

Permitting Prayer, Proselytizing, and Other Forms of Religious Expression

• Employers should train managers to gauge the actual disruption posed by religious expression in the workplace, rather than merely speculating that disruption may result. Employers should also train managers to identify alternative accommodations that might be offered to avoid actual disruption (e.g., designating an unused or private location in the workplace where a prayer session or Bible study meeting can occur if it is disrupting other workers).
• Employers should incorporate a discussion of religious expression, and the need for all employees to be sensitive to the beliefs or non-beliefs of others, into any anti-harassment training provided to managers and employees.

Retaliation

• Employers can reduce the risk of retaliation claims by training managers and supervisors to be aware of their anti-retaliation obligations under Title VII, including specific actions that may constitute retaliation.
• Employers can help reduce the risk of retaliation claims by carefully and timely recording the accurate business reasons for disciplinary or performance related actions and sharing these reasons with the employee.

Employee Best Practices

• Employees who are the recipients of unwelcome religious conduct should inform the individual engaging in the conduct that they wish it to stop. If the conduct does not stop, employees should report it to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.
• Employees who do not wish to personally confront an individual who is directing unwelcome religious or anti-religious conduct towards them should report the conduct to their supervisor or other appropriate company official in accordance with the company’s anti-harassment policy.
• Employees should advise their supervisors or managers of the nature of the conflict between their religious needs and the work rules.
• Employees should provide enough information to enable the employer to understand what accommodation is needed, and why it is necessitated by a religious practice or belief.
• Employees who seek to proselytize in the workplace should cease doing so with respect to any individual who indicates that the communications are unwelcome.

The new MA rule will read:

Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action in connection with the representation, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Recently, while watching the news, I saw an online video clip of a Burger King employee taking a bath in the Burger King sink. There he was, suds and all and (to borrow from McDonalds) "lovin' it." The report concluded by remarking the young man (and his fellow employees) no longer work at BK.

This is just one example of what you put into cyberspace may hurt you and can be used in ways you might not have thought about. We're just beginning to see how this is playing out in business and in law.

I've seen HR people advised to do a Google search on employment prospects and to review the first ten pages of results. Elsewhere I've spoken to corporate officers who have commented on how a LinkedIn or Social Networking Sites Help Vet Jurors, and consider how social network sites may be being used to examine jurors.

Jury consultant Robert Hirschhorn, mentioned in Kay's article, explains he advises his clients [lawyers],

to keep information gleaned off the Internet hush-hush... [and] use it for peremptory strikes, without giving any indication why the person is being bounced...

This is done so other jurors won't learn their being investigated and to prevent potential backlash. Speaking of trial tactics observed after a jury was chosen, Hirschhorn adds,

...he is just now starting to see lawyers use information in opening and closings. For example, a lawyer discovered from a person's MySpace page that his favorite book was The Seven Habits of Highly Effective People, and found a way to subtly include that reference into his closing arguments.

While some of these ideas many not be new to trial lawyers and jury consultants, they probably are new to those who are sitting on a jury or applying for their first job. Beware what you post, once it's out there, there's no taking it back...

When asked, "What are my chances at winning at trial?", most lawyers in Massachusetts or elsewhere would reply, "It depends." A recent article in the New York Times is offering some percentages and cost estimates that will likely raise a few eyebrows.

The article entitled, Study Finds Settling Is Better Than Going to Trial, discusses a study finding settlement is statistically generally the best option. The article indicates plaintiffs were wrong to go to trial in 61% of the cases and defendants were wrong to proceed to trial in 24% of cases. Both were wrong because they could have settled the case for an amount better than what was achieved at trial.

The article reports:

...in just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

It's worth noting, however, that the estimated cost for making the wrong choice was a lot greater for defendants ($1.1 million) than it was for plaintiffs ($43,000).

While numbers are one factor to consider in proceeding to trial, the issues of civil justice, correcting a wrong, or having your day in court are worth something of societal value too. These are issues that can't be measured in dollars or percentages, but at the same time lawyers need to advise their client's to pursue their best interests. In the end, the right question may not only be: "What are my chances of winning at trial?" but also ,"Why do I want to go to trial?" The decision is always the clients and it's a decision that should be based on what is right for them, even when it's against all odds.

Often it's tempting to take an legal document found on the internet (sometimes prepared by a lawyer), make a few changes, and recycle the attorney's language to create any number of legal documents. Massachusetts consumers and businesses are smart and think, "Why pay a lawyer in Massachusetts when it's available for free online?" In some cases perhaps they could be right, in others they could be disastrously wrong. The key is to know the difference and that's where consumers and businesses can often fail. Is it worth the risk? Can what you don't know hurt you? Some examples to consider before answering:

LANGUAGE ISSUES

Real Estate Law - A party signs a "Standard Form" Offer or "Standard" Purchase and Sale Agreement, but later learns there were some key changes made to a few important words in the "standard" agreement. Just because it says "standard" don't think it is.

Employment or Discrimination Law - A company fires an employee and offers a severance package. The employee signs the severance agreement and cashes the severance check. Later the employee sues for age discrimination on the basis that the Older Workers' Benefit Protection Act ("OWBPA") was not explicitly followed. Why? Because the severance agreement made reference to 154 employees being affected by the terminations when, in fact, only 152 employees were. A federal court case covered in a Labor & Employment Law Update, Peterson v. Seagate, No. 07-2502, 2008 U.S. Dist. LEXIS 42179 (D. Minn. May 28, 2008), dealt with these facts. Here the employee's release was void, the employee kept the severance money, and the employee could also sue the employer under the Age Discrimination in Employment Act ("ADEA").

Divorce Law - An unsuspecting spouse signs the divorce agreement with all kinds of technical language concerning taxes and other issues which the other spouse has had reviewed by his or her lawyer, but tells you he or she just got it off the internet.

PROCESS ISSUES

In other cases, it's not just the language but also the process that must be followed to insure your wishes are followed.

Will - A parent has two adult children: one is a loving caregiver and the other hasn't been heard from in years. The parent decides to make a will leaving everything to the caregiver. The caregiver signs the will as a witness. Did you know the caregiver could now receive nothing and the other child everything?

Business Law or Trusts - A couple forms an LLC or Trust but fails to follow the steps needed to treat the LLC or Trust as a separate legal entity. The LLC or trust may end up providing no protection and leading to liability which hadn't been properly planned for.

Real Estate Deed - A simple deed is taken from the internet or copied from the public records at the local Registry of Deeds. Names are substituted and the deal goes forward. Later the buyer learns a probate estate matter was involved and the government has a lien against the property. This would have been found if a customary title exam was conducted. Guess who may now be on the hook for the lien amount?

RULES VS. PRINCIPLES

Last night, after a quick run from Weymouth to Hingham and back, I was reading a Law Practice article discussing the difference between our legal system and the U.K.'s approach to electronic evidence and discovery issues ("e-discovery") ("electronic data discovery" or "electronic data disclosure" known as "EDD"). The article contained a comment that I found interesting:

All the interviewees agreed that in the U.K. EDD is principles based, whereas in the United States it's rule based. Everyone believed that this is the biggest difference-and that the principles-based system is better.

While this is a good theoretical point to consider in reviewing this new area of law, it's not a debate you want to find yourself dealing with in a case that involves your interests. As you can see from above, our rules-based laws can lead to results that may not always agree with your principles or your intent. Think twice the next time you cut and paste.  Often when a legal document is involved, there's something of real value at stake.  Most times when a client asks me to look at "something" they found on the internet, it has serious flaws when applied to their specific circumstances.  Luckily, we can fix this before it's too late.  Those who come in after the fact and seeking help -- they don't tend to make the same costly mistake twice.

115 Weymouth condominium unit owners seeking real estate tax abatements failed to prove an overvaluation and their real estate tax abatement request was denied. In sum, conclusions regarding the highest and best use of the properties was found to lack any supportive evidence, thus serving no utility in establishing the properties fair cash value.

This decision shows the importance of having a strong basis for filing for a Massachusetts real estate tax abatement. Recently, in Sunset Realty Group of the Berkshires v. Board of Assessors of Town of Peru, the presiding commissioner commented:

...a taxpayer ‘may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.' ...

... At any hearing relative to the assessed fair cash valuation ... of property, evidence as to the fair cash valuation ... at which assessors have assessed other property of a comparable nature ... shall be admissible.'

For deeper coverage, see Massachusetts Lawyers Weekly reviews of the Peru case and Weymouth case - the two sources for this blog entry.

A new area of medical malpractice law has arrived in MA and it concerns what is known as the "Loss of Chance Doctrine." The Boston Globe's, Denise Lavoie, writes:

The state's highest court ruled yesterday that doctors can be held liable for negligence that reduces a patient's chance of survival, even if the patient's prospect for recovery was already less than 50 percent.

The Massachusetts Supreme Judicial Court (SJC), in a decision written by Chief Justice Margaret Marshall, held:

Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages...

The Court's opinion provides a 5 step method for awarding damages:

Deriving the damages for which the physician is liable will require the fact finder to undertake the following calculations:

• 1. The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, G. L. c. 229, § 2, or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent's death or injury.

• 2. The fact finder must next calculate the patient's chance of survival or cure immediately preceding ("but for") the medical malpractice.

• 3. The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice.

• 4. The fact finder must then subtract the amount derived in step 3 from the amount derived in step 2.

• 5. The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance.

EXAMPLE:

• Step 1. Suppose in a wrongful death case that a jury found, based on expert testimony and the facts of the case, that full wrongful death damages would be $600,000;

• Step 2. The patient had a 45% chance of survival prior to the medical malpractice;

• Step 3. The physician's tortious acts reduced the chances of survival to 15%'

• Step 4. The patient's chances of survival were reduced 30% (i.e., 45% minus 15%) due to the physician's malpractice; and

• Step 5. The patient's loss of chance damages would be $600,000 multiplied by 30%, for a total of $180,000.

See the full case, Robin K. Matsuyama, Executrix of the Estate of Kimiyoshi Matsuyama vs. Neil S. Birnbaum & Dedham Medical Associates, Inc.

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Do you submit confidential documents to the U.S. Equal Employment Opportunity Commission (EEOC)?

David A. Skidmore, Jr. and William F. Becker in a Frost Brown Todd LLC Client Advisory, "Take care when providing proprietary or confidential information to the EEOC", discuss issues a company should consider when making an EEOC filing. Their article follows from their reading of Venetian Casino Resort, L.L.C. v. EEOC, decided June 27, 2008, the D.C. Circuit Court of Appeals:

First, employers should not submit information assuming that it will be treated by the EEOC as confidential. Second, if sensitive information is submitted to the EEOC, just labeling it “confidential” may not be enough to assure that the EEOC will provide notice before disclosing the information to anyone who asks for it. The Court of Appeals specifically stated that “. . . disclosure of information does not violate the [Trade Secrets Act] merely because that information was labeled ‘confidential’ by the submitter.”

At a minimum, confidential information submitted to the EEOC should include prominent notice that it is confidential, an explanation of how disclosure would cause “substantial harm to your company’s competitive position,” and a request that notice be given before the information is disclosed in response to a FOIA request.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

An ABA Journal Article, "Former Law Dean Obtains Internet Addresses of Anonymous Online Critics", is a reminder that what one anonymously writes on the internet may not be anonymous.

Could your blog, comments, or other online postings land you in the middle of a defamation suit? Or raise the possibility of an interference with business relations claim? Are you anonymously mentioning competitors or promoting your services in a manner that could be seen as unfair competition or as violations of consumer protection laws?

Things to consider before making "anonymous" postings or contributions. In the alternative, this is also a means to seek protection when you, your business, or your children are the targets of anonymous online attacks.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

In Blank Rome's Newsletter, Ninth Circuit Ruling Raises Stakes for Companies and Individuals Facing Parallel Civil and Criminal Investigations By: Matthew D. Lee and Tyler Brody, they discuss issues raised in a case were a civil governmental investigation was being coordinated with criminal investigations, United States v. Stringer, 521 F.3d 499 (9th Cir. 2008) Download Case.

The criminal investigations were slowed down and not overtly acted upon so the civil investigation could proceed and obtain statements which would not likely to be provided in a criminal case.  Here, the civil and criminal activities were closely coordinated and the civil investigators were even instructed on how to ask questions in depositions to help build the government's criminal case.  When the target's attorney asked about the possibility of a criminal investigation, despite knowing in was ongoing, the civil investigation did not need to disclose this fact when an SEC Form 1662 was provided which makes a blanket statement that information collected may be shared with other governmental agencies.

The Blank Rome article states:

The impact of the Stringer decision on how counsel should approach the defense of a civil investigation cannot be under - stated. Defense attorneys must be aware that their clients can potentially, and unknowingly, waive their Fifth Amendment rights after they are given minimal notice by civil investigators. Thus, even if a government investigation appears to be merely civil in nature, an astute defense attorney must anticipate the possibility that the civil attorneys are working with, or taking direction from, prosecutors seeking to build a criminal case. Counsel also must realize that, simply because the existence of criminal investigation is not readily apparent, does not mean that one is not underway, especially if their clients are cooperating with civil investigators. Indeed, Stringer allows criminal and civil investigators to conceal a significant amount of collaboration and joint strategic planning without triggering concerns that the government is acting in bad faith.

They conclude:

The Stringer decision shows that defense counsel should handle the defense of a client subject to a civil investigation as though it were criminal, and strongly consider the extent to which their clients should be cooperating with government lawyers, particularly where the lawyer knows that the client may have criminal exposure. Because the result of Stringer affords government lawyers so much leeway in using evidence collected in a civil investigation to build a criminal case, counsel must be careful not to allow their clients to supply the government with the proverbial rope with which they will ultimately be hung.

A recent Massachusetts Superior Court decision shows some of the complex issues that can be raised in tenancy agreements.  This particular case involved a commercial lease, but a review of the areas covered provides general insight into leases and agreements whether you are a consumer, a business, lessor, lessee, owner, tenant, guarantor, or landlord.

Seven Issues To Consider in Lease Agreements & Tenancy Litigation

1. Fraud in the Inducement - To establish fraud in the inducement you must show misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statements to the detriment of the person relying.
2. Chapter 93A - General Laws c. 93A, § 2 makes unlawful all unfair or deceptive acts or practices in the conduct of any trade or commerce. Conduct is deceptive if it possesses a tendency to deceive -- could reasonably have caused a person to act differently than he or she would have.
3. Breach of Contract & Integration Clause - When an agreement, such as a lease, is unambiguous and contains an integration clause, a party to the lease may not rely on evidence extraneous to the four corners of the lease to claim rights under the lease.  The contract will be enforced according to its express terms.
4. Quantum meruit - A theory of recovery based on unjust enrichment.
5. Implied Covenant of Good Faith and Fair Dealing - Contracts are subject to an implied covenant of good faith and fair dealing.  A party may not appeal to the covenant, however, to create rights and duties not otherwise provided for in the existing contractual relationship.
6. Negligence - Where a contract has a valid integration clause, claims of negligent misrepresentation are barred.
7. Rescission - Without a viable claim for breach of a lease agreement, a claim for rescission based on breach of the lease agreement must fail.

(NOTE: I've cut and pasted language in the decision, changed sentence structure here and there, changed some words around, and removed all legal citations to focus on the general nature of these issues.  I also added links to general information, not MA law.  The full decision which is much better than my piecemeal approach is available in Middlesex Superior Court Civil Action No. 07-3147.)

Contract Lesson: Be careful of any representations being made and review what's in (and what's not in) your tenancy agreement.

The United States Supreme Court has been active on the employment front this term. Previous posts discussed some of these cases, but the newest ruling (Meacham ET AL v. Knolls Atomic Power Laboratory, AKA KAPL, Inc., ET AL.) takes up a disparate-impact
claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq.

The company reduced its work force by having managers score subordinates on “performance,” “flexibility,” and “critical skills”; these scores, along with points for years of service, were used to determine who was laid off. Of the 31 employees let go, 30 were at least 40 years old and a ADEA claim followed.

The holding in this case places the burden of proof on employers when the termination involves an an older worker. This creates additional issues an employer must be prepared to prove. Here the employer must prove the termination was based on reasonable factors other than age (RFOA) by:

1) Producing evidence affirmatively raising the defense, and

2) Persuading the factfinder of the merits of this defense.

The case creates important considerations for both employers and employees in considering an ADEA claim. The result will certainly create additional costs for businesses but is being hailed as a victory for elder law advocates.

A recent law firm survey of 100 corporate clients indicated 53 percent of respondents "had a negative outlook on the economy" with 31 percent considering a "recessionary economy" to be the biggest threat.

Whether from Boston, Weymouth, Cape Cod, or elsewhere in MA, anecdotal evidence from talking with attorneys, accountants, and Massachusetts business owners confirms the same.  As a result, Massachusetts small business owners and family businesses are now taking pause and seeking ways to help them protect their assets, both personal and business.

If you have concerns, here are some questions you should be considering today:

• Have you been too busy growing or focusing on your businesses and not made the time to protect your home and family assets?
• Are you conducting risky business in business entities that may not limit your liabilities?
• Are personal guarantees placing your family's assets at risk?
• Do you own companies and assets under one umbrella, possibly exposing everything to liability when an issue arises?

This is my advice whether you are just starting a business or are an existing business owner with liability concerns:

First, take an inventory of your personal assets and personal liability exposures.

Second, take proactive steps to protect yourself and your family.

Third, reduce business liability issues with proper planning and by making use of ordinary and creative options.

While insurance and accounting practices are good steps toward your goals, adding a combination of legal protections with these is a more powerful approach.  Don't wait until you get knocked down and it's too late to take advantage of all your options.  Begin taking stronger strides towards keeping what you have protected, especially while weathering fluctuations in an uncertain or even a recessionary economy.

In this instance it is far better to take arms against a sea of troubles, and by opposing end them...

While not a Massachusetts finding, the New York Times in an article entitled Legal Drugs Kill Far More Than Illegal, Florida Says, states:

An analysis of autopsies in 2007 released this week by the Florida Medical Examiners Commission found that the rate of deaths caused by prescription drugs was three times the rate of deaths caused by all illicit drugs combined.
...
The Florida report analyzed 168,900 deaths statewide. Cocaine, heroin and all methamphetamines caused 989 deaths, it found, while legal opioids — strong painkillers in brand-name drugs like Vicodin and OxyContin — caused 2,328.

The article also states,

The report’s findings track with similar studies by the federal Drug Enforcement Administration, which has found that roughly seven million Americans are abusing prescription drugs. If accurate, that would be an increase of 80 percent in six years and more than the total abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

Martha Neil at the ABA Journal blog reports:

The pet dog of deceased Leona Helmsley is losing $10 million of the $12 million that the 87-year-old hotel heiress left him in her will when she died last year, disinheriting two grandchildren.

But the elimination of most of Trouble's trust fund isn't expected to put a dent in the 9-year-old Maltese pooch's luxe Florida lifestyle, which costs about $190,000 annually, reports the New York Post.

At least the dog can still maintain a humble lifestyle at $190,000 a year.

Erik J. Heels (described as "an MIT engineer, patent and trademark lawyer, Red Sox fan, and music lover) offers a simple visual concerning copyright law in his blog post a Drawing That Explains Copyright Law .

He states:

My drawing could be better. And my explanation could be better. But again, I drew this for a child, so it's a good place to start. The main point is that there are three classes of uses: unregulated, fair use, and protected.

Sometimes a picture can be worth one thousand words...

While not specific to Massachusetts, a recent AAJ Law News Digest (by email, June 5, 2008) cited three articles illustrating interesting developments in arbitration and law, as well as an interesting poll.

Costs vs. Benefits in Arbitration

In No Room for Error in Arbitration?, Thomas E.L. Dewey and Kara Siegel, New York Law Journal, June 03, 2008, write:

Arbitration of commercial disputes has become increasingly common, due in part to the widely held perception that arbitration is a less expensive and more expeditious method of dispute resolution. Recent court decisions, however, have underscored the fact that those perceived benefits come at a price: the U.S. Supreme Court ruled in April that parties cannot agree to a higher standard of judicial review of arbitration awards, and appeared to question the validity of a long-standing doctrine that does permit courts to overturn arbitration awards that are in "manifest disregard" of the law. The net result: parties who agree to arbitrate their disputes should understand that it will be very difficult to obtain relief from an erroneous arbitration award.

Franchise Concerns in Arbitration

In Pressure Grows to Rethink the Use Of Mandatory-Arbitration Clauses By Richard Gibson, he states:

Most franchise contracts once called for mandatory arbitration of issues, rather than going to court. But these days there is growing pressure -- from franchisees, judges, Congress and even some franchisers -- to rethink that longstanding arrangement. 'The trend toward arbitration has pretty much ended,' says Peter Lagarias, a franchisees' attorney in San Rafael, Calif. Among the concerns is that there is no guaranteed right of appeal. 'You have to take what the arbitrator decides,' says Joshua Becker, an in-house counsel for fast-food franchiser Kahala Corp. For that reason, he says, Kahala, whose brands include Blimpie submarine sandwiches and TacoTime, favors resolving issues with franchisees in court."

Doctors Not Treating Patients without Arbitration

The Tampa Tribune Editorial, New 'Hello' In Health Care: Sign Here Not To Sue, states:

"It's not uncommon today for a woman visiting her gynecologist to give up her right to sue if something goes wrong. The doctor simply won't treat her unless she agrees to take any potential claim to an arbitration panel rather than the courts. The same goes for many acute-care hospitals and nursing homes, where stressed-out families with little choice are handed 60-odd pages of documents to sign. Sandwiched near the end, the mandatory-arbitration agreement gets the briefest of explanations. Binding arbitration - not health precautions and explanations - is the new 'hello' in health care. It's a physician's answer to the threat of litigation and the high cost of malpractice insurance. Like some trial lawyers who have convinced clients to sign away their constitutional rights to limited legal fees, doctors are getting patients to sign away their constitutional right to sue, too. This troubling new practice is a barrier to the doctor-patient relati onship, akin to signing a pre-nuptial agreement before getting married. The practice is a form of blackmail: Sign it or get out."

Consumer Poll Results on Arbitration

The AAJ on their webites provide the article, New Poll: Americans Say “No Thanks” To Binding Arbitration:

Washington, DC—Americans generally disapprove of binding arbitration provisions in consumer contracts as an alternative to civil legal proceedings involving a judge or jury, according to a recent national poll by survey firm Peter D. Hart Research Associates Inc.

“Mandatory binding arbitration doesn’t give consumers a choice,” said American Association for Justice President Kathleen Flynn Peterson. “This poll proves that when asked to choose, consumers overwhelmingly say ‘no thanks’ to unfair arbitration agreements. Arbitration can only be a valid and effective method of resolving disputes when both parties agree voluntarily.”

Consumers are sometimes required to sign a contract with a company when purchasing products or services ranging from cell phones to nursing home care. These contracts often include a binding arbitration provision which states the consumer agrees to have any dispute with the company decided by an arbitrator, rather than by a judge or jury in a civil legal proceeding.

Binding arbitration has even been enforced in nursing home deaths. Massachusetts resident John Donahue suffered an eye injury so severe that it required removal of his eye while under the care of a nursing home. The infection caused by his injury eventually led to his death. When his daughter Marlene Owens went to file a claim against the nursing home corporation she was told that her father signed a binding arbitration agreement without any family members present. The nursing home insists that the case be taken to arbitration and the case is currently pending.

According to the polling, when consumers learn that the company picks the arbitrator, and they give up their right to take the case to court and binding arbitration applies even if they are seriously injured, 81 percent disapprove.

The poll also shows broad support for Congressional legislation called the “Arbitration Fairness Act” that seeks to protect Americans from abusive arbitration agreements. The legislation would ensure that the decision to arbitrate be made voluntarily and after a dispute has arisen. In addition, the legislation enjoys very strong support across party lines with no statistically significant differences between Democrats (+38) and Republicans (+37).

Last week, the U.S. House and Senate passed The Food, Conservation and Energy Act of 2008 conference agreement containing a voluntary arbitration provision which would allow farmers to opt out of binding mandatory arbitration clauses at the time they sign a contract with a processing company. The enactment of this provision would mark a significant step forward for farmers who are subject to these abusive contracts.

Summary

Is arbitration right for you? What are your downsides and upsides? These are questions to consider anytime you're faced with an arbitration clause or are considering including one in your contracts. The larger issues remains, are forced arbitration agreements fair and should they be allowed under law? It appears both consumers and companies are now giving this some additional thought.

The article, Whether Paid Keyword Search Advertising Constitutes Trademark Infringement: Opens Rifts Among US Courts, appears in the Intellectual Property Update, Spring 2008, Squire, Sanders & Dempsey L.L.P. It concludes with,

While we expect the importance of the Internet and search engines to lead to a greater number of disputes over paid search keywords and related issues, the creation of a uniform set of rules – and with them settled expectations – will require additional time. In the meantime, both trademark owners and those using trademarks as paid search keywords should pay close attention to this area of the law as it continues to develop.

The article explains the use of keywords in online advertising and looks at the different results different courts have reached. The analysis is worth reviewing to anyone using keywords. This is true in their own advertising campaigns or for anyone who is seeing unexpected results from searches on their trademarks.

Imagine getting divorced, thinking the law states after divorce your ex is no longer your life insurance beneficiary. You don’t name a new beneficiary thinking the payout will go to your estate.

Maybe not...

Marla Presley in her firm’s website discusses a case in Penn, decided May 9, 2008 where the Penn. Superior Court ruled that the Employee Retirement Income Security Act (“ERISA”) preempts a state law that mandated the revocation of beneficiary designation upon divorce. The gentleman had filled out the beneficiary form listing his wife as the primary and his nephew as the contingent beneficiary. After his divorce he never changed the form. The ex got it all. Probably not the result that was intended.

Beneficiary designation forms are an often overlooked area of estate planning that can have dire consequences if not taken care of. I represented one person in a case where the beneficiary form was executed, put in an envelope, but never mailed. It became an expensive stamp.

Something to think about the next time a defense expert or doctor treats a car accident victim with disdain. Perhaps they don’t really dislike the injured person (who they’re showing disgust towards). Maybe they’ve just been coached by the insurance company’s defense lawyer as part of the “litigation plan.”

Although not from Massachusetts, defense attorney Jenifer L. Kienle generally discusses how mental health professionals and experts should be coached to avoid forming favorable impressions of an injured car accident victim. In her article, “The New Science of Stress - Why Defending a Fender Bender Lawsuit When the Plaintiff Claims Post Traumatic Stress Syndrome Requires a New Litigation Plan,” she states:

Finally, choosing a defense expert also requires an understanding that treaters in the mental health field frequently become involved with a patient, and while exploring their personality, subconsciously begin to "like" the plaintiff. … be alert to any defense expert who, after spending considerable time interviewing the plaintiff, reports his/her impression of the plaintiff in complimentary terms. This may be a sign the expert's professional judgment (and ultimate diagnosis) is impeded by favorable feelings toward the plaintiff. Avoid this trap with early, frequent and candid discussions with the expert so that his/her favorable impressions of the plaintiff can be managed. [bold added for emphasis]

If you’ve been injured in a car accident, the stress can be real. It can cause anxiety, loss of sleep, fear of driving, and many other emotional and physical symptoms. Don’t ever let a supposed "expert" make you feel bad or question the legitimacy of what you are going through. You’ve suffered enough and it wasn’t your fault. Remember, even though they’re “professionals” they’re not being paid to like you. As you can see from above, some "defense experts" are even being coached to ensure they don’t. They're not being genuine and they're not playing fair, you need an advocate who can understand what you're going through and who isn't afraid to challenge the defense expert's bias or the people who pay them.

James Vaznis of the Boston Globe reports,

A Middlesex Superior Court jury has decided that the City of Cambridge should pay a former employee more than $4.5 million, after the jury found that the city retaliated against the woman for filing a discrimination case nearly 10 years ago. ...

The jury included $3.5 million in punitive damages. The city intends to appeal.

Massachusetts law does not allow employers to retaliate against employees for their discrimination complaints.

Age Discrimination

A Supreme Court decision extends federal workers' rights in filing age-bias suits by a vote of (6-3). A U.S. 1st Circuit Court of Appeals in Boston's ruling (upholding a lower court's dismissal) was overturned. The ruling allows federal employees retaliated against (because of their discrimination complaints) to pursue lawsuits under the Age Discrimination in Employment Act (ADEA). Prior to this case, it was argued the ADEA only applied to private sector workers. This case establishes it applies to federal employees as well.

Racial Discrimination

Also, in a vote (7-2), the Supreme Court ruled a provision of the Civil Rights Act of 1866 (known as known as section 1981) covers claims of retaliation following complaints about discrimination based on race. The dissents in both these cases were Justices Antonin Scalia and Clarence Thomas. While Chief Justice John Roberts dissented in only in the age bias case, he was with the majority in the racial discrimination case.

With rights expanding, the question becomes how do you prove discrimination. This led to interest in the "me too" evidence case. However, for now no new answers emerge form the Court on this issue.

Me Too Evidence

George Lenard, reports on his blog, George's Employment Blawg, in detail about the issue of "me too" evidence in discrimination cases:

In its recent unanimous decision in Sprint v. Mendelsohn, the Supreme Court largely avoided the tough issue before it: admissibility of “me-too” evidence in discrimination cases — testimony of other employees who believed they too had been discriminated against.

Genetic Information Discrimination On May 21, 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008 (GINA) protecting people from discrimination based on genetic material. GINA becomes effective November 21, 2009. A general "primer" on GINA is covered at the Genetic Genealogist.

All and all, May has been a discriminating month...

Today I spoke with a woman who is considering a severance package from her employer. While there were other issues involved, one of the questions she asked is, "Am I entitled to see my personnel file."

In Massachusetts, the answer is yes. Massachusetts employees have the right of access their personnel records when they make a written request to their employer. An employee generally has three options available to them concerning the materials contained in their record:

   1. When an employee disagrees with information in their personnel file, then the information can be corrected or removed by employer.

   2. If the information is not corrected or removed then the employee may write a statement and have the statement added to their file.

   3. If an employee knows material in their file is false, then the employee may seek its removal through a collective bargaining agreement, other personnel procedures, or in judicial process to have the information expunged.

The law defines, "Personnel record" as,

a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record as provided in this section. A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person’s privacy. Without limiting the applicability or generality of the foregoing, all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee; all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee. A personnel record shall be maintained in typewritten or printed form or may be handwritten in indelible ink.

In addition to the requirements found in Chapter 149, Section 52C: "Personnel records; review by employee; corrections; penalty", an employee may obtain their employment records in lawsuits or other matters involving administrative agencies and employment matters.

Whether you’re a passenger, driver, or pedestrian in a Massachusetts auto accident, the insurance issues can be tricky. It’s not uncommon for someoe injured in a car accident to go see a medical provider thinking their medical care should be covered by the person who caused their accident. If it’s not covered, they believe their medical insurance company should cover the bills. After all, that's why we pay so much for all this insurance, right? But did you know that thinking the insurance issues are simple and will take care of themselves could lead to receiving big bills for unpaid medical expenses?

The failure to take the right steps with insurance coverage in MA accidents can lead to a bill going unpaid and later ending up in collection. This is not a good result for someone who was injured by another in a car accident. Here’s a very basic overview for someone injured in an accident. (For simplicity sake, I’ll assume no time was missed from work, but that’s a bad assumption for lawyers to make in most serious car accidents.)

The first $2,000 in medical bills should be paid by your Auto Insurer’s Motor Vehicle Personal Injury Protection (PIP) insurance benefits. If you have health insurance, then your health insurance provider should pay for claims beyond the first $2,000 unless you have MedPay benefits under your auto insurance policy. If you have MedPay, a recent case confirms your health insurer may defer coverage to the MedPay insurer and the MedPay policy should pay until it maxes out its payments in accordance with the policy. Then, your health insurer would make the remaining payments. For the purposes of this post, I won’t get into how these issues also relate to settlements and trials.

No matter what, however, don't make the costly mistake of going outside your health insurance plan or you risk having to pay for the medical services out of your own pocket. “[E]ven when there is health insurance, PIP does not cover claims denied by a health insurance provider because the insured has failed to comply with the health insurance contract, for example by seeking out-of-network care.” Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115-117 (1999).

If you don’t have health insurance, then your PIP benefits should pay the first $8,000 in claims and if you have MedPay benefits, it should pay until the coverage limit is reached.

The interplay of PIP, MedPay and Health Insurer issues was recently addressed with the Massachusetts Supreme Judicial Court (SJC) concluding there is “… nothing in the statutory language governing PIP or MedPay to prohibit health insurers from deferring coverage due to the existence of MedPay benefits...” Metropolitan Property and Casualty Insurance Company vs. Blue Shield of Massachusetts, Inc. SJC-09944 (slip opinion)

Justice Bostford, writing for the court, provides a statutory framework of the insurance issues raised.

Statutory framework. The Massachusetts "no-fault" insurance plan, adopted in 1970, originally provided for PIP benefits (up to $2,000) to be paid in place of tort recovery for injuries that caused less than $500 in medical expenses. See § 34A (defining "[p]ersonal injury protection"), as amended through St. 1970, c. 670, §§ 1, 2; G. L. c. 90, § 34M, inserted by St. 1970, c. 670, § 4; G. L. c. 231, § 6D, inserted by St. 1970, c. 670, § 5. See also Pinnick v. Cleary, 360 Mass. 1, 5-10 (1971). In 1988, in an effort to bring the statutory amounts in line with escalating medical costs and further to control automobile insurance premiums, the Legislature increased the tort threshold to $2,000 and increased PIP coverage to $8,000, but provided that PIP would pay only the first $2,000 in medical expenses in cases where the insured also had health insurance that would cover expenses above that amount. See § 34A, as amended through St. 1988, c. 273, §§ 15-16; G. L. c. 231, § 6D, as amended by St. 1988, c. 273, § 55. See also Creswell v. Medical W. Community Health Plan, Inc., 419 Mass. 327, 329-330 (1995). This "coordination of benefits" scheme providing for the sharing of costs between automobile and health insurers is expressed in two sentences in the final paragraph of § 34A:

"[P]ersonal injury protection provisions shall not provide for payment of more than two thousand dollars of expenses incurred within two years from the date of accident for [medical and funeral services] if, and to the extent that, such expenses have been or will be compensated, paid or indemnified pursuant to any policy of health, sickness or disability insurance . . . . No policy of health, sickness or disability insurance . . . shall deny coverage for said expenses because of the existence of personal injury protection benefits."

§ 34A, as amended through St. 1988, c. 273, § 16. Under these provisions, PIP only covers medical expenses above $2,000 if they are not covered by health insurance. Moreover, even when there is health insurance, PIP does not cover claims denied by a health insurance provider because the insured has failed to comply with the health insurance contract, for example by seeking out-of-network care. Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115-117 (1999).

MedPay benefits are not part of the statutory scheme that established the no-fault system with its central feature of PIP benefits. Since 1943, G. L. c. 175, § 111C, has authorized, for various types of liability insurance policies, including automobile policies, optional endorsements to provide coverage for reasonable medical and related expenses. G. L. c. 175, § 111C, inserted by St. 1943, c. 375, § 1. Beginning in 1968, however, under G. L. c. 175, § 113C, automobile insurers doing business in the Commonwealth have been required to offer every person purchasing a policy the option of purchasing "medical coverage, so called . . . to a limit of at least five thousand dollars." G. L. c. 175, § 113C, as amended by St. 1968, c. 643, § 3. This obligation to offer optional medical, or MedPay, benefits is reflected in Part 6 of the standard Massachusetts automobile insurance policy (policy). In particular, Part 6 of the seventh edition of the policy, applicable to the accident in this case, provides in relevant part: "Under this Part, we will pay reasonable expenses for necessary medical and funeral services incurred as a result of an accident. . . . We must sell you limits of $5,000 per person if you want to buy them." Thus, it appears that G. L. c. 175, § 111C, authorizes automobile insurers to offer MedPay coverage, and G. L. c. 175, § 113C, requires them to do so. Accord Morin v. Massachusetts Blue Cross, Inc., 365 Mass. 379, 385 & n.5 (1974).
[Footnotes deleted]

In the end, it’s important to realize protecting your case (and your credit rating) is not simply about liability but also requires dealing with complicated insurance issues. Failure to take the right steps in a Massachusetts auto accident can lead to collections efforts against you and ultimately to you paying out of pocket for an injury (even when you were a passenger or completely blameless.)

A study entitled Legal Liability: The Consequences of School Injury in the Journal of School Health, May 2007, Vol. 77, No. 5, (Abstract only) examined cases involving schools, lawsuits, and injuries. Schools paid awards about 2/3 of the time, either by verdict (26.8%) or settlement (40.4%). The average case lasted just under 4 years from the time of injury to the case’s resolution by trial or settlement. Surprisingly, they found it difficult to predict the cases resulting in an award, stating: “this study found no difference on any case characteristics between cases that resulted in awards and those that did not.”

They authors concluded,

Many of the injuries documented in this study may have been prevented through better maintenance of school facilities, equipment and playing fields; addition of safety features and equipment; improved supervision of students; education of school officials, students, and parents; and enforcement of building codes and rules, especially during sports and recreational activity.

Award Range: $1 to $15,398,762; Mean: $562,915; Median: $50,000; 25th percentile: $9,750; and 75th percentile: $300,000.

Massachusetts Independent Contractor Law: Attorney General Guidelines and Three Prong Test for Independent Contractors

The Massachusetts Office of the Attorney General has issued an Advisory regarding M.G.L. c. 149, s. 148B, to provide “guidance” on the Massachusetts Independent Contractor Law or the Massachusetts Misclassification Law.

Under M.G.L. c. 149, s. 148B(d), an employer violates the law when two acts occur.

1. An employer classifies or treats an individual other than as an employee and the worker fails to meet the following three prong test (each is required for an individual or independent contractor to be classified other than as an employee): a. Is the individual free from control and direction in connection with the performance and service, both under his contract for the performance of service and in fact?

b. Are the services the individual performs outside the usual course of business of the employer?

c. Is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed?

2. In receiving services from the individual, the employer violates one or more of the following:

a. The wage and hour laws set forth in M.G.L. c. 149.

b. The minimum wage law set out in M.G.L. c. 151, s. 1A, 1B, and 19; 455 CMR 2.01, et seq.

c. The overtime law set forth in M.G.L. c. 151, s. 1, 1A, 1B, and 19.

d. The law requiring employers to keep true and accurate employee payroll records, and to furnish the records to the Attorney General upon request as required by M.G.L. c. 151, s. 15.

e. Provisions requiring employers to take and pay over withholding taxes on employee wages. M.G.L. c. 62B. (purposes of income tax withholding, M.G.L. c. 62B provides a definition of employee that differs from the three prong test in M.G.L. c. 149, s. 148B.)

f. The worker’s compensation provisions punishing knowing misclassification of an employee. M.G.L. c. 152, s. 14.

The advisory arrives at a time when employer liability concerns in Massachusetts' employment matters are growing. See my prior post, New Massachusetts Wage and Employment Law: Tougher on Employers, Better for Employees and Unions, on this topic and a May 6, 2008 email/MCLE Press Release stating,

Just two weeks ago, legislation mandating treble damages for prevailing wage-and-hour plaintiffs was passed, considerably raising the stakes for independent contractor classification and other wage and hour issues. See 2008 Mass. Acts c. 80 (formerly Mass. Senate Bill No. 1059). The new law will be effective July 13, 2008.

With the potential for treble (triple) damages around the corner, now is a good time for all businesses to review both their employment and independent contractor agreements and practices.

Public records can be helpful in government matters but also for business purposes, in automobile and personal injury cases, or many others types of litigation.

People sometime ask, "How do I get a copy of a local government record?" In Massachusetts, the Secretary of State has published A Guide to the Massachusetts Public Records Law, updated January 2008.

Records are presumed public unless they fall under one of sixteen exclusions, but fees may be charged to obtain them.

The difference between the federal Freedom of Information Act (FOIA) and the Massachusetts Public Records Law is FOIA applies to federal records while the Massachusetts Public Records Law applies to state and local records.

Lawyers are generally aware of changes in court rules that deal with electronic evidence, but many small businesses don’t have inside counsel or general counsel available to them who can keep them apprised of what to do and also, what not to do. An article in Law Technology Today: March/April 2008, “Are You Litigation Ready?” by Matthew W. Blake, found,

Most American corporations are ill-prepared to respond to electronic discovery requests and go to court. … In a survey of more than 100 information technology managers in medium and large American corporations, only 6 percent said they “immediately and confidently” can field electronic discovery requests. Just 9 percent told pollsters they receive proper legal guidance and funding for electronic discovery procedures; 40 percent said they receive no guidance at all. Fewer than half feel they have IT professionals competent to testify in court regarding electronically stored information (ESI). More than half said their companies have no enterprise search tools. Three-fourths lack effective e-mail intelligence systems.

Blake recommends taking these three steps: Assess What You Have; Map Out Your Data; and Strengthen Your “Hold” on the Data Giant

He argues failure to take these steps can lead to increased future litigation costs. I agree and would add that failure to take the right steps could also lead to sanctions, fees, and liability in matters that were not handled the way they should have been. Is your Massachusetts business ready for these issues if you were sued today? Do you have a lawyer who understands litigation, local rules of court, and can advise your managers and IT staff on what to do to protect your business interests? As the saying goes, "forewarned is forearmed."

LAW PASSED: A new Massachusetts labor or wage law will create treble (triple) damages against companies in wage and hour violation cases. This departs from federal courts and other states where an employer can raise a “good faith” defense and avoid treble damages.

Massachusetts Lawyers Weekly reports,

“Previously, under a 2005 Supreme Judicial Court decision, treble damages were available only in cases in which the court concluded that an employer had willfully and intentionally committed an infraction.”

“…the [Massachusetts] Legislature passed a bill on April 15 that makes Massachusetts the first state in the country to impose automatic treble damages against any business that violates wage and hour laws.”

EMPLOYEE BENEFIT: From a Massachusetts employee's perspective, this new labor law provides an incentive for employees and their lawyers to pursue claims. A $10,000 claim is now a $30,000 claim, plus attorneys’ fees. Apply this multiplier to multiple claimants and the numbers can add up quickly.

UNION ORGANIZING BENEFIT: Labor unions should celebrate this law’s enactment. From their perspective, this law will provide an additional tool for protecting employees’ wages.

Additionally, it may become a useful tool for union organizers who come across wage claim violations in non-unionized companies. Organizers can educate employees of their rights; motivate an employee to pursue a claim; and then use the cost and risk of litigation as a bargaining chip against a target company. I’ve seen this work with success in past organizing campaigns involving National Labor Relations Board (NLRB) complaints. With even higher stakes involved in Massachusetts wage cases now, I wouldn't be surprised to see this organizing strategy emerge on every union organizer’s radar soon.

DEFENSE STRATEGY: Nevertheless, the new threat of triple damages and attorneys fees in Massachusetts alone will likely impact the manner in which these cases are defended against. Defending these cases will require a reasonable assessment of the facts as well as the potential liabilities created by the new law. As in many areas of law, prevention still works best.

WAGE POLICIES AND PROCEDURES: With higher liability exposure in Massachusetts, companies doing business here would be well served to review their procedures on wage issues, as well as their dispute resolution practices and procedures best suited for these and other disputes. It makes sense for companies of any size to establish a relationship with a lawyer who can respond to an issue when it arises, or even better, before.

LIVING WAGES & FAIRNESS: A recent Massachusetts AFL-CIO Weekly Labor Reader dated Friday April 18, 2008, quoted past U.S. President Franklin Delano Roosevelt.

"No business which depends for existence on paying less than living wages to its workers has any right to continue in this country. By living wages I mean more than a bare subsistence level - I mean the wages of decent living."

Every person is entitled to the pay they earn as an employee. At the same time, good employers who are trying to do right by their employees and are providing a living wage also deserve protection, especially in this tough economy.

Full disclosure, I had attended and graduated from the AFL-CIO Organizing Institute before organizing for several unions around the nation. My experiences there and elsewhere helped guide me in deciding to attend law school. I now represent both employers and employees.

Sexual harassment (or discrimination) in Massachusetts workplaces can take many forms creating liability for both individuals and companies. Earlier today, I talked with a good friend about his first day in a new job. Day one consisted of him filling out the usual forms, making introductions, and watching a video on sexual harassment in the workplace. He summed up his new company's sexual discrimination policy as, “don’t look, don’t touch.” While that may be a good message to absorb on day one, as a manager who could subject both his company and himself to liability under sexual harassment law, it may be helpful to know a bit more about it.

Formal workplace sexual harassment standards are set forth in Massachusetts General Laws, Chapter 151B. Additionally, the Massachusetts Commission Against Discrimination (MCAD) issues guidelines regarding sexual harassment and what employees and employers should do to prevent, stop and respond to sexual harassment complaints. Two nonexclusive types of sexual harassment are known as: "quid pro quo" and "hostile work environment" harassment.

Quid pro quo harassment involves “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when … submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.”

Hostile Work Environment harassment includes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when … such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”

Examples offered by MCAD of each type are:

quid pro quo harassment: termination; demotion; denial of promotion; transfer; alteration of duties, hours or compensation; or unjustified performance reviews.

hostile work environment: inappropriate touching; sexual epithets, jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or sexual gestures.

While sexual harassment jokes may be funny in movies or sitcoms, discrimination can be devastating for someone suffering it in their employment. If you are the target of or subject to sexual harassment at the workplace then you need to act to preserve your rights in Massachusetts. While Massachusetts law did require claims to be filed within six months, changes in the law have extended the filing deadline to 300 days. Of course, laws and deadlines can change. Massachusetts discrimination and employment law has many nuances best navigated by a lawyer who takes the time to hear your case, identifies the applicable law, and knows how to protect your rights. Whether you work on the South Shore, are appearing in Boston before the MCAD, or have a claim best suited for Superior Court, don’t proceed without knowing your rights and how to protect them.

Massachusetts train crashes are recoverable against the MBTA and its operators. I previously discussed this in my post on commuter train crashes and compensation for personal injuries or fatalities, "Personal Injuries and Commuter Train Crashes in Massachusetts: Seeking Compensation for Injuries Involving the Massachusetts Bay Transportation Authority (MBTA)." Some may ask, “What are the outer limits of the state’s liability in a commuter train accident?”

Massachusetts General Laws (M.G.L.) Chapter 161A, Section 43 addresses the liability policy requirements for commuter rail train service (the MBTA and the operating railroad company). The law provides for a liability insurance policy with annual policy limits of at least $75,000,000 subject to self-insured retention of at least $7,500,000.

Liability beyond the available insurance coverage is disclaimed in the statute, but this law does not apply to third parties who may be at fault for a train accident. Nonetheless, this ceiling does seek to cap liability for the Commonwealth of Massachusetts. If a maximum recovery is likely to be paid out, you may consider being among the first to settle so you are not prevented from a recovery based on the state’s liability cap. That is, once the maximum amount of funds are dispersed to other claimants, it will be hard (if not impossible) to receive your fair share.

Bruce Selya, a judge since 2005 with the 1st U.S. Circuit Court of Appeals has been named chief judge of The U.S Foreign Intelligence Surveillance Court of Review. This court handles appeals over wiretaps of suspected terrorists or spies. It was created to hear government appeals when lower courts reject the government's application.

The Providence Journal reports Selya will take over as chief judge on May 19 and his term will run through 2012. Selya, from Rhode Island, was a federal judge before being appointed to the Federal Appeals Court in 1986.

A Congressional Research Service Report, The U.S. Foreign Intelligence Surveillance Court
and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview, dated January 24, 2007, by Elizabeth B. Bazan, Legislative Attorney, American Law Division provides a 15 page report. The Report's Summary states:

The national debate regarding the National Security Agency’s Terrorist Surveillance Program (TSP) focused congressional attention on the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review created by the Foreign Intelligence Surveillance Act. Congressional interest in these courts has been heightened by the January 17, 2007, letter from Attorney General Gonzales to Chairman Leahy and Senator Specter advising them that a Foreign Intelligence Surveillance Court judge had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization,” stating that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, and noting that the President has determined not to reauthorize the TSP when the current authorization expires. This report examines the creation, membership, structure, and jurisdiction of these courts. It will be updated as subsequent events may require.

Wikipedia gives a general overview of the topic,

The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under 50 U.S.C. § 1803 and established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short). It is a three judge panel whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). Each judge of the FISC, in turn, has the jurisdiction to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the United States. Any appeals from the Court of Review are made directly to the Supreme Court. Like a grand jury, the Court of Review is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae. Records of the proceedings are kept, but they are classified, although copies of the proceedings with sensitive information redacted may be made public.

The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven year terms. The terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either this court or the FISC.

The Court of Review was called into session for the first time in 2002 in a case referred to as "In Re Sealed Case No. 02-001". The FISC had granted a FISA warrant to the F.B.I., but had placed restrictions on its use; specifically, the F.B.I. was denied the ability to use evidence gathered under the warrant in criminal cases. The Court of Review allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file briefs as amici curiae arguing against the F.B.I's new surveillance regulations. The Court of Review held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.

Current composition of the court listed by Name, Circuit, Appointed, Expiration of Appointment Edward Leavy (presiding), Ninth, September 25, 2001, May 18, 2008 Ralph K. Winter, Jr., Second, May 18, 2003, May 18, 2010 Bruce Marshall Selya, First, October 8, 2005, May 18, 2012 List of former judges Laurence H. Silberman, D.C., May 18, 1996, May 18, 2003 Ralph B. Guy, Jr., Sixth, October 8, 1998, May 18, 2005 The exact dates of Judge Silberman's tenure are uncertain.

In 2002, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology wrote a critcal review entitled, "THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW CREATES A POTENTIAL END RUN AROUND TRADITIONAL FOURTH AMENDMENT PROTECTIONS FOR CERTAIN CRIMINAL LAW ENFORCEMENT WIRETAPS"

While "A history of Foreign Intelligence Surveillance Court" indicates:

Continue reading "AP Reports Federal appeals judge in Boston named top judge of wiretap court" »

On April 14, 2008, the United States Bankruptcy Court District of Massachusetts announced both a red-lined version and a complete version of the new local rules and forms (effective May 1), have been made available under the Laws, Rules, Fees and Forms Section of their website.

A note states in the red-lined version states,

The amendments have been red-lined except where indicated. Red-lining has not been inserted where a) the provision is new or b) red-lining would, in the opinion of the Court, interfere with the reading of the provision.

Another available resource on local rules in the Bankruptcy Court is the, The Appellant Panel for the First Circuit’s Local Rules

A recent Massachusetts Appeals Court case examined the issue of fiduciary duty and contract law in a commercial real estate dispute arising between general partners and limited partners.

The case involved, “…various transactions by the general partners, including their purchase, without the involvement of the limited partners, of large real estate parcels neighboring the building project for which the limited partnership was formed….”

The Court found. “As the limited partnership agreement expressly allowed the general partners' actions, we affirm the judgment rejecting all the limited partners' claims.”

See Slip Opinion 07-P-422 Appeals Court, Robert L. Fronk, Jack Saltiel and Maila L. Walter v. John P. Fowler, Jeffrey A. Millman, Robert Lee Wolff, Jr., Maple Leaf Cambridge Corporation, and The Cambridge Company, Inc.

Several cases were cited that should be considered when entering a contract or any business venture: "the obligations of the parties are determined by reference to contract law, and not by the fiduciary principles that would otherwise govern." Chokel v. Genzyme Corp., 449 Mass. 272, 278 (2007). See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 408 (1995) ("questions of good faith and loyalty with respect to rights on termination or stock purchase do not arise when all the stockholders in advance enter into agreements" concerning those issues); Sonet v. Timber Co. L.P., 722 A.2d 319, 322 (Del. Ch. 1998) ("principles of contract preempt fiduciary principles where the parties to a limited partnership have made their intentions to do so plain"). … "[W]here sophisticated parties choose to embody their agreement in a carefully crafted document, they are entitled to and should be held to the language they chose." Anderson St. Assocs. v. Boston, 442 Mass. 812, 819 (2004).

This case serves as a reminder that it’s important to have an agreement in writing, but also to fully understand the rights and duties the agreement creates. If you’re a business owner in Massachusetts, it’s unwise to think of contracts or agreements as just routine boilerplate language. You should question each provision and understand what it means for you and your business interests.

Injured or hurt in Massachusetts auto accident or a car crash involving MA drivers? There can be a good amount of detailed paperwork you are asked to fill out regarding your accident (as well as your wages, insurance, and injuries). Failure to correctly complete an auto accident report can certainly hurt your potential compensation rights in a personal injury case. If you go it alone, proceed with caution in preparing any early car accident reports or forms. Instead, it's highly recommended to obtain the assistance of a lawyer familiar with auto accidents and personal injury claims.

As an attorney working on motorcycle, bicycle, and auto crash cases, I counsel clients to always be clear and succinct in their written statements and reports. Oftentimes the less said, the better. It is unwise to quickly complete a form you do not fully understand. A simple mistaken statement or carelessly sketched diagram made following your accident can greatly harm, if not destroy, a serious personal injury case involving a motor vehicle accident.

The Massachusetts Motor Vehicle Crash Operators Report Download file is often the first form you may encounter after a motor vehicle accident (not, however, the only one to look out for which could torpedo your case). It is not uncommon for people to raise questions about this form with our lawyers or even to complete the auto accident form in our Weymouth office – or at a client's home or elsewhere when their injuries prevent someone from travelling to Weymouth to discuss their case.

I like to use an electronic version of the Massachusetts Motor Vehicle Crash Operators Report that allows us to fill in the form's blanks and to quickly make corrections when mistakes or misunderstandings occur. People generally find this approach is much better than starting from scratch and handwriting three copies of the same detailed report (as well as keeping at least one for your records too). Below are instructions on what is involved in completing a Massachusetts Operators Report:

Section A: Crash Location. Provide the city/town where the crash occurred, the date and time of the crash, and the number of vehicles involved. Complete section A1 or A2.Use official names of all locations, streets and landmarks. Use street name and route #, if applicable. Be as precise as possible when describing the location. Provide enough information to locate the crash to a specific point, not just a street or roadway.

Section B: Vehicle You Were Driving. Provide information on your license and the vehicle you were driving. Use the codes provided to indicate the cause of the crash.

Section C: You and Your Passengers. Provide information on you and your passengers at the time of the crash. Use the codes provided to indicate occupant information.

Section D: Other Vehicles Involved in the Crash
Provide information on the other vehicle(s) and operator(s) involved in the crash. If more than one vehicle involved, please use additional form completing Section D only.

Section E: Non-Motorist(s) Involved. Provide information on the non-motorist(s) involved in the crash. If more than one non-motorist involved, please use additional form completing Section E only.

Section F: Crash Conditions. Use the codes provided to indicate the conditions at the time of the crash.

Section G: Crash Diagram. Draw a diagram of how the crash occurred. On the diagram, Vehicle 1 represents your vehicle.

Section H: Witness Information. List all the people who saw the crash but were not involved.

Section I: Property Damage Information. Indicate all non-vehicular property that was damaged in the crash.

Section J: Description of What Happened. Describe the crash including events prior to the crash for your vehicles and all other vehicles.

Section K: Signature. Please sign and print your name and indicate the date you completed the form.

Once you get through the form, you are next told to: 1) mail or deliver one copy to your local police department in the city or town where the crash occurred, 2) mail one copy to your Insurance Company, and 3) mail one copy to the Registry of Motor Vehicles (RMV).

Your report is filled out regardless of whether the police were at the scene of your accident and they completed their own police report. The police report (even when you have a copy) is not a substitute for completing your Operator's Report following an accident. Clients generally take comfort in completing this form (as well as others involving insurance, wages, and medical records) with someone who will take the time to walk them through it and explain the significance of each question. It's also reassuring to leave a law office with confidence knowing that all of the final details and notices will be taken care of for you.

But beware; forewarned is forearmed. It's quite easy to lose your auto accident personal injury case without realizing it. Wherever you are in Eastern Massachusetts or the Greater Boston area (or down the street from our law office in Weymouth, MA), I recommend your find someone experienced you can trust to handle your personal injury case right from the start.

Massachusetts affordable housing projects under M.G.L. Ch. 40B are often criticized for limiting a local board’s powers to regulate development in a city or town. Proponents, on the other hand, argue the law helps promote new affordable housing developments. It is not uncommon for 40B projects to make headlines in local papers and for developers, municipalities, residents, and interest groups to be outspoken on this issue.

Regardless of one’s position on 40B, there are fundamental questions of power and legal authority that arise. Local boards and authorities are likely to applaud a recent SJC opinion concerning 40B and easements.

The Massachusetts Supreme Judicial Court (SJC) ruled the Housing Appeals Committee (Committee) of the Department of Housing and Community Development exceeded its authority under G.L. c. 40B (Affordable Housing Act) by ordering conveyance of a sight line easement on a town's property. This case establishes the Committee has the power to grant permits or approvals like a local board, but not the power to order the conveyance of an easement.

The opinion reasons, an easement is an interest in land which grants to one person the right to use or enjoy land owned by another; the grant of an easement constitutes the transfer of an interest in land; the fact that an easement may encumber only a small portion of an owner's land does not change its legal significance; and the Act does not authorize the Committee to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development.

The SJC distinguished this decision from Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64 (1976)>. The Maynard case involved the extension of a sewer line (under G.L. c. 83), for which the developer, and not the public, agreed to bear all costs – it did not involve, nor authorize, the transfer of an interest in municipal land in the form of a mandated easement.

See Slip Opinion: SJC-10028 until published, Zoning Board of Appeals of Groton & others vs. Housing Appeals Committee and another.

Massachusetts competitive auto insurance is about to begin and become available to Massachusetts consumers.

An insurance premium comparison website has been made available for Massachusetts consumers looking to lower their car insurance bills under the new program. The interactive website allows you to compare estimates of premiums for new private passenger automobile policies sold in Massachusetts.

The site was rolled out as part of an introduction to managed competition beginning April 1, 2008 in Massachusetts. The consumer focused website asks several questions before providing results as well as discounts companies may offer.

One of the seven questions makes a distinction between types of auto insurance coverage: "mandatory" or "standard."

Mandatory coverage is the least amount required under Massachusetts law (Bodily Injury ($20,000/$40,000); Personal Injury Protection; Uninsured Motorist ($20,000/$40,000); Property Damage ($5,000)).

The "Standard Policy” offers more protection: Bodily Injury ($100,000/$300,000); Personal Injury Protection; Uninsured Motorist ($100,000/$300,000); Property Damage ($100,000); Collision and Comprehensive ($500 deductible), and is recommended over the required minimum.

The site states, "[a]ccidents can often result in damage that exceeds these [Standard] limits." At least a $100,000 bodily injury policy limit makes a lot more sense than $20,000. Whether you are being sued or if you are injured in a car accident, you will be more protected.

When the other side in your case has no (or too little) insurance – then your insurance policy may be available to compensate you for your damages. Even when you were not at fault, your insurance company may end up paying you for injuries caused by someone else. This was discussed earlier in my Hit and Run post discussing "uninsured" issues.

In the end, the better policy protects both you and others on the roads. Contact me if you’d like to discuss the options available to you when you’ve been injured in car, bus, or truck accident in Massachusetts. We are experienced in these cases and we can help you with the insurance issues they raise. Let our attorneys know if we can help you discover the insurance that may be available to compensate you for your injuries, pain and suffering, or loss.

If you are Massachusetts passenger injured in a commuter train accident (or MBTA bus or trolley accident), then several options for compensation may be available to you. You may have an actionable claim (i.e., for negligence) against the train’s operator or owner, as well as claims against other responsible parties.

You must, however, take action in a timely manner. If not, your claims or compensation rights will be forfeited. Massachusetts General Laws (M.G.L.) Chapter 161A, Sec. 38 states, in part, “The authority [MBTA] shall be liable … for personal injury and for death … in the same manner as though it were a street railway company.” Additionally this section establishes a two year statute of limitations for these claims.

Although a report from the Association of American Railroads indicates Massachusetts experienced a 21% decline in train accidents between 2006 and 2007, train accidents continue occurring and may involve serious injuries or fatalities as demonstrated by recent events.

Recently headlines discuss multiple fatalities involving Amtrak trains. Last evening a commuter rail crash took place involving estimates between 100 to 300 people. Injuries were reported to range from a broken leg to back or spine injuries, with details still unknown. Due to the large number of passengers involved, at least three different medical facilities provided care: Caritas Hospital in Norwood, Good Samaritan Hospital in Brockton, and Milton Hospital in Milton, Massachusetts.

This commuter train was apparently struck by a runaway freight train. The freight train, loaded with lumber, was believed to have “rolled” for two to three miles before crashing into the commuter train.

Channel 5 News reported a, “freight train car rolled into a commuter train in Canton on Tuesday afternoon, injuring several people.” FOX video shows the scene of the crash and includes reactions from some passengers.

Dealing with the MBTA on your personal injury claim can be challenging. Your case deserves the attention of an experienced attorney to distinguish your case from the many others being reviewed by the MBTA’s lawyers. In fiscal year 2008, the MBTA law department had a total budget of just under $5.5 million dollars and was expected to handle between 4,000 to 5,000 claims and settle over 1,000 of these while being involved in over 500 lawsuits.

The legal and administrative issues arising with the MBTA are not for the uninitiated. These cases may generally take time to resolve and can also be delayed by fiscal policies related to the timing of settlements and available government funding.

In Massachusetts, several state laws can apply to train accident victims. If you’ve been injured in a train accident, then don’t go it alone. Contact us to review your case and to determine your compensation rights before it’s too late.

Massachusetts personal injury and wrongful death cases may involve outstanding medical bills or liens that should be considered before trial or settlement occurs. A lien is basically the right to take another's property if an obligation is not discharged.

For instance, your health insurer may be entitled to a lien against your personal injury case for medical bills arising from a car accident and paid by your insurer. The same could apply to an estate following a fatality. The size of liens or outstanding medical bills in Massachusetts may factor heavily in settlement offers, counteroffers, settlements or jury awards.

A study of 100 cases (involving personal injury, employment, medical malpractice, automobile accidents, and contracts) suggested civil case mediation has about an 80% effectiveness rate, but the rate can be increased if mediators consider the effect of liens in mediations.

As an attorney in Weymouth, Massachusetts I have negotiated liens in a number of personal injury and wrongful death cases. As a mediator in places like Boston, Quincy, or Wrentham, I have seen liens overlooked and not even mentioned by either the plaintiff's or the defendant's lawyer.

Often a lien against your case can be negotiated along with a final settlement (with a lien holder agreeing to accept less than 100% of its lien amount.) A lien may be negotiated to avoid delays, minimize the risk of losing at trial or arbitration, or as contribution toward legal fees involved in obtaining a recovery.

If you have a slip and fall, car crash, or any type of personal injury or wrongful death case in Massachusetts potential liens often arise. This is true even when you are only an injured bystander or a passenger in a car that was rear ended. It is best to make sure all potential lien issues are dealt with before settling your case.

I often consider the effect of liens when valuing a case for our clients. Whether the lawsuit involves a case in Norfolk, Plymouth, Barnstable, Suffolk or other counties, we have successfully negotiated lien amounts, avoided some liens altogether, or had defendant insurance companies take full responsibility for our clients' outstanding liens and medical costs.

If you have a personal injury case in Massachusetts, inquire about the potential liens on your case. Failure to address liens upfront may lead to insurance companies assessing your case for less than it is worth. Insurers often defend their lower offers on cases where no liens exist by arguing the full amount will go to you free and clear (and not shared with a third party). Finally, it is also wise to remember, liens may end up being paid 100% from your settlement or recovery.

Protect your final recovery by ensuring any potential liens are resolved before your case is settled. An unexpected lien is not something you want to learn about only after closing your case and investing your settlement proceeds or recovery elsewhere.

I attended an interested training last evening at the Norfolk Probate and Family Court in Canton. The training is part of a pilot program allowing lawyers to represent clients on a limited basis in probate and family law maters.

This program is being offered in three counties with discussions of its expansion at the end of the year. Under the pilot program the attorney and client enter a fee agreement for a limited purpose (i.e., attend one day at court, review a case, draft documents or pleadings, coaching, conduct or respond to discovery...). The analogy being made here is to transactional law where clients routinely seek advice on only part of a matter -- like a buyer asking an attorney to review a purchase and sales contract for a set fee.

The testing of this concept in Massachusetts probate and family law litigation matters is a new and interesting development, but one that has been growing in other states (California and Maine were given as examples).

Continue reading "Massachusetts Limited Representation Probate & Family Court Pilot Program" »

A Massachusetts judge advanced a public policy argument finding it, "…unfair to approve a mortgage loan that the borrower cannot reasonably be expected repay if housing prices were to fall…”

The judge indicated loans are “presumptively unfair” under our consumer protection law (MGL Ch. 93A) when they: include an adjustable rate mortgage (ARM) which is adjustable within 3 years; carry an interest rate of at least 3 percent less than the indexed rate; involve borrowers with debt to income ratios above 50%; and have 100% loan to value ratios, or have prepayment penalties that are significant or which last longer than the initial “teaser” period.

Although the loans weren’t fraudulently induced, the judge issued a preliminary injunction and offered, “Just because we, as a society, failed earlier to recognize that loans with these ... characteristics were generally unfair does not mean that we should ignore their tragic consequences and fail now to recognize their unfairness." See Eric T. Berkman’s article in Lawyer’s Weekly, "Lender's 'subprime' foreclosures require attorney general's OK".

How does the injunction work? In this case the California lender must notify the AG’s Office before foreclosure. The AG’s office has 30-45 days to respond (depending on circumstances). If the AG objects, the lender and AG must attempt to work it out in 15 days. If it’s not worked out, the lender needs Superior Court approval to proceed.

In Massachusetts or elsewhere, it happens. Someone causes a car accident or a motorcycle accident and then takes off leaving the scene of the wreck. Today’s news has Springfield Police looking for a speeder who was evading the police by making a u-turn into oncoming traffic on an interstate highway.

This phantom driver caused a five car crash. If they catch the driver, then civil lawsuits will likely follow, but what if they don't catch the responsible party? What if you are injured in a car accident or truck accident and the offending vehicle speeds away or takes off before the police arrive, or while you are being taken to the hospital?

In these instances, whether you’re in Boston, Plymouth, Brockton, Weymouth, or anywhere in Massachusetts, the injured party may still recover under an "uninsured" policy claim. In these types of cases, the non-negligent driver's insurance may cover the loss, pain and suffering of anyone injured by the phantom vehicle.

There are steps to take to protect these claims. The trail of insurance coverage may not always make sense, but the key point to remember is this: do not give up on your personal injury claim that involves a hit and run or unidentifiable vehicle. See a Massachusetts lawyer soon and take the steps needed to protect your car accident case.

They say good fences make good neighbors. Cutting down your neighbor's trees can make for trouble.

In Glavin v. Eckman, et. al. a neighbor was awarded $90,000 against another neighbor for cutting down ten trees to improve their "view." The damages were calculated at $30,000 and then multiplied by three (trebled) in accordance with Massachusetts law.