JCOHS Lawyers and Attorneys

Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Academy for State Health Policy, more than 36,000 licensed facilities are operating nationwide.[1] Because there is no common definition for these facilities, however, this number may not adequately reflect their prevalence.

Although most litigation in the long-term-care field over the last 10 years has involved nursing homes, suits against assisted living facilities are mounting. One reason is that these facilities are not regulated by the federal government, and the state regulations that exist are inconsistent and, for the most part, lax in enforcing industry standards.

In an attempt to compete with nursing homes, assisted living facilities are accepting residents with greater medical needs or significant cognitive impairment. Most major chains promote special Alzheimer’s disease units, but the reality is that staffing in many of these facilities is inferior to that in nursing homes and simply cannot meet the needs of these residents.

Neglect in assisted living facilities can result in falls, fractures, sexual or physical abuse, pressure sores or other skin breakdown, malnutrition, depression, immobility, and even death. For example, one assisted living facility admitted an elderly alcoholic undergoing detoxification who required close supervision and care. An employee allegedly provided him with a lighter and cigarettes, then left him unsupervised. The resident set himself on fire.[2]

In other cases where supervision was severely lacking, people who tended to wander were admitted into facilities that were not set up to prevent this behavior. Wanderers mostly suffer falls and fractures, but some who have ventured out during winter months have died from hypothermia. One unfortunate resident wandered into the path of a moving train and was killed.

In several cases, assisted living facilities accepted severely ill patients who either had or were at severe risk for developing pressure sores, even though these facilities are not equipped to provide the skilled care—including tube feeding, catheterization, and daily turning and positioning—necessary to prevent or treat them. These residents developed severe pressure sores as a result of improper care.

These scenarios are not uncommon, but a lack of reporting requirements, state investigation, and active litigation has allowed assisted living facilities to continue operating under far less scrutiny than the nursing home industry.

Admission criteria

When a facility accepts residents whose needs or acuity levels exceed the staff’s skill or training, it opens itself up to legal liability. In most jurisdictions, liability can be determined by the state’s admission criteria.

For example, Virginia regulations prohibit assisted-living facilities from admitting or retaining patients who have stage III and IV pressure sores; who are ventilator dependent; who require nasogastric tubes, intravenous therapy, or injections directly into the vein; and who need continuous licensed nursing care.[3] Other states have similar limitations.[4]

These are some common state law criteria that would preclude a person’s admission to assisted living facilities:

1. is a threat to self or others[5]

2. has a contagious or an infectious disease[6]

3. requires care beyond the facilities’ skill[7]

4. requires physical and/or chemical restraints[8]

5. requires 24-hour nursing or other care[9]

6. is bedridden[10]

7. requires specialized long-term care[11]

8. has stage III and/or IV pressure sores[12]

9. requires more than minimal assistance in moving to a safe area during an emergency[13]

10. is less than 18 years old[14]

11. requires help with tube feeding[15]

State regulations that set forth specific admission criteria can be used to set the standard of care in your jurisdiction. Even in states that have no criteria, the community-practice standard would dictate that an assisted living facility may not accept a patient whose needs it cannot meet. However, the lack of case precedent and strong regulatory standards poses significant—although not insurmountable—obstacles to successful litigation.

Case selection

The first step in evaluating your case will be to get the records from the facility, including the signed contract, which should define the duties the facility agreed to undertake.

Most assisted living facilities offer various levels of service. Basic service might include only room, board, and activities. The highest service level might include assessment of physical and mental health, care or service planning (a multidisciplinary process in which various providers come up with a unified plan to address the resident’s physical, mental, and psychosocial needs), medication administration, and nursing care (assistance with bathing, feeding, and grooming). These facilities are like nursing homes that do not provide skilled care, and arguably they should be held to the same standard of care.

You will also need to submit a Freedom of Information Act (FOIA) request to identify the corporate entity that owns and operates the facility. The license should always be available from the local regulatory agency in charge of licensing and inspecting the facility; it may include information about the scope of services that the facility is authorized to provide.

In your FOIA request, also seek access to results of surveys and inspections of the facility conducted by the local department of social services. Do not expect these reports to contain the wealth of information typically included in such reports on nursing homes: Often they do not include assessments of whether the facility is complying with regulatory standards.

Once you have obtained these records, have a reliable nursing expert review the case. Because many nurses who work in the assisted living industry are licensed practical nurses, not registered nurses, they may lack the background you need, so you may need to retain an expert from outside the field. If a case involves a relatively simple issue like a fall, you may not need a liability expert.

Working with your expert, consider these factors when deciding whether to accept a case:

1. The nature of the resident’s condition upon admission. If he or she was mentally competent and living independently, contributory negligence and comparative fault defenses will pose significant hurdles.

2. The nature of the contract and duties the facility assumed. If the facility agreed to provide only room and board, the defense will argue that its duties are comparable to those of a landlord in an apartment building.

3. The quality of the relationship between the resident and his or her personal representative. If the resident is deceased, this issue may take on a greater importance: The nature of that relationship may determine what damages are available under the applicable wrongful death act.

4. Whether the family members make good fact witnesses, appear genuinely outraged by the facility’s conduct, and complained and/or removed their loved one from the facility.

Whether the facility had serious staffing shortages or a pattern of neglecting its residents.

5. Whether the resident suffered a significant injury in the facility that will adversely affect the quality of his or her life in the future, or that caused his or her death.

6. Whether you have strong witnesses and powerful exhibits. Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of the resident’s pressure sores or compound fracture?

7. Whether the client has significant economic damages that are not encumbered by a Medicare or Medicaid lien.

8. Whether the defendant is a charitable organization, religious affiliate, or part of a large assisted living chain. Charitable organizations tend to be more sympathetic defendants, and some states have statutory limits on their liability.

Liability theories

Attorneys who file claims against assisted living facilities can be creative in developing liability theories. However, don’t complicate your case with unnecessary theories, and remember that the scope of discovery may be affected by the ones you advance.

Common law negligence. This is probably the most common liability theory in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pleaded a traditional medical malpractice case.

Instead, plead the breach of regulatory and/or industry standards that proximately caused your client’s injury. Because assisted living facilities are not traditional health care providers, these cases should not be subject to damages caps or discovery limitations such as quality assurance privileges that would apply to medical negligence claims. A quality-assurance or peer-review privilege is typically asserted over any documents created to improve the quality of care in that facility—such documents can include incident reports, meeting minutes, or internal memos addressing any problems.

Violations of the state consumer protection or “adult protection” act. Many states have statutes that allow a private right of action for neglect committed in assisted living facilities.[16] Plaintiffs have advanced consumer protection theories even against health care providers,[17] so there should be no reason why such theories can’t be applied against an assisted living facility.

For example, one U.S. district court upheld consumer-protection and fraud-based claims against Manor Care, Inc., an assisted living provider that allegedly persuaded a resident to enter the facility with misrepresentations about staff ratios and training.[18] Ask your client what representations the facility made, and obtain any marketing brochures.

One advantage to filing under state consumer- and adult-protection statutes is that they allow for recovery of costs and attorney fees. While some states specifically exempt health care providers from such statutes,[19] these exemptions should not apply to assisted living facilities.

Breach of contract. Almost all assisted living facilities require prospective residents to sign a contract as a condition of admission. Scrutinize the contract for waivers of liability or of the resident’s right to a jury trial. Facilities can assert such waivers whether or not a plaintiff pleads a separate breach of contract claim. Usually such waivers impose mandatory arbitration of all claims, including tort and contract claims.

Most states limit contract damages to foreseeable economic damages, so don’t plead this as your only liability theory. However, the contract may have required that certain services be delivered to the resident—activities, assistance with daily living, 24-hour supervision—that were not provided. If the resident did not suffer physical injury from the facility’s failure to deliver services, the defense will argue that evidence of such failures should be excluded at trial. You can argue that this evidence is admissible to prove contract damages and to recover monies for services that were not provided.

The defense may respond that contract damages would be based on speculation, since the plaintiff failed to quantify the services that were not provided. To preempt this argument, have your client provide a good-faith estimate of the percentage of services that he or she did not receive.

If you have a strong negligence claim based on a discrete event, such as a fall that caused a hip fracture, you may prefer to omit the contract claim to avoid confusing the jury with collateral facts and issues unrelated to your client’s damages.

Negligent hiring and/or retention. Consider this claim when the case involves intentional torts, such as assault, committed by an employee who the defendants knew or should have known was a potential danger to residents. Obtain the employee’s personnel file early in litigation; if you discover evidence of the defendant’s knowledge, amend the complaint to include this claim before the statute of limitations expires.

Also consider suing the employee individually. If the same defense firm represents both the employee and the corporation, it will be difficult for the defense to argue that the employee was not operating within the scope of his or her employment.

When the case involves an intentional tort, always check the terms of the facility’s insurance coverage to determine whether any exclusions apply. If the policy excludes coverage for intentional torts, you may want to dismiss the claim against the employee after you have obtained a ruling that he or she acted within the scope of employment. Then, if you recover damages against the facility under a general negligence theory, this ruling will make it difficult for the defense to argue in a subsequent declaratory judgment action that liability insurance coverage for torts does not apply.

Wrongful death. When there is evidence that the facility’s negligence caused or contributed to the resident’s death, you should assert wrongful death and survivorship claims. Also plead any claims for injury that did not contribute to the death with your survivorship claims.

Determine what damages you can recover under the wrongful death statute in your jurisdiction. If the law allows only economic damages, you may decide to forgo a wrongful death claim.

Punitive damages. Economic damages in an assisted living case usually are not impressive because most residents are too old or infirm to hold jobs, and any preexisting conditions that your client has may weaken the compensatory damages claim. Therefore, plead punitive damages whenever possible. Making a punitive damages claim will also provide a basis for exploring the defendant’s conduct toward other residents who experienced neglect similar to your client’s. Courts around the country have upheld such claims against nursing homes,[20] and these precedents should apply to assisted living facilities.

Essential experts

In almost every assisted living case, you will need experts to establish causation and damages. Since many residents injured in assisted living facilities require long-term care in a nursing home, consider obtaining a life-care plan from a qualified expert. In most cases, you will need a medical expert to establish causation, support the life-care plan, and testify to life expectancy. When determining whether the facility breached regulatory or community-practice standards in admitting a resident whose needs exceeded its capabilities, have an expert evaluate the resident’s condition and the relevant admission criteria.

Be prepared for a battle over the admissibility of your experts’ testimony. Selvin v. DMC Regency Residence, Ltd., a Florida case, is a good example.[21] In Selvin, an elderly resident of an assisted living facility wandered off and was found dead in a nearby canal. The plaintiff alleged two separate theories of liability: The first was a statutory wrongful death action, and the second was based on alleged violations of statutes relating to assisted living facilities.

The plaintiff claimed that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish residents of the decedent’s age and health condition.

The plaintiff sought to introduce expert testimony that specific safety precautions that the defendant had not taken were the industry standard, including building a fence to prevent elderly residents from wandering near a dangerous area of the canal. The trial court excluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public.

The appellate court reversed, finding that the facility’s undertaking to furnish certain services created a legal duty to protect residents. The court also held that the trial court had erred in excluding the expert’s testimony regarding industry standards.

Experts may also be helpful in cases involving falls, depending on the facts of the case. If the facility’s staff simply dropped the resident during a transfer or made some other obvious mistake, an expert may not be necessary.[22] In more complex cases, an expert will help the jury understand the facility’s negligence in failing to implement adequate fall-prevention measures.

For example, if the resident came to the facility with multiple risk factors for falling—such as dementia, unstable gait, arthritis, or a history of falls—that were never assessed or planned for, and fell while wandering the hallway, retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, the expert will testify that if the facility had followed appropriate standards, the fall, more likely than not, would have been prevented.

As the use of experts in assisted living cases is an area of first impression in many jurisdictions, educate the court with a trial memorandum addressing your expert’s testimony before trial.

Liability for negligence by assisted living facilities is a new and evolving area of the law, and attorneys who litigate these cases should strive to establish favorable precedent for those who follow. These claims, like those involving nursing homes, help protect the rights of elderly Americans by ensuring that the industry follows standards to keep facility residents safe.

Notes

[1]ROBERT L. MOLLICA, STATE ASSISTED LIVING POLICY: 2000, at 3 (Nat’l Acad. for State Health Pol’y (Portland, Maine) Nov. 2000).

[2] Holt v. Clarksville Residential Care Ctr., No. 50300430 (Tenn., Montgomery Cir. Ct. filed Nov. 11, 2002).

[3] 22 VA. ADMIN. CODE §40-71-150(F) (West 2003 & Supp. 2004).

[4] For example, Montana law prohibits assisted living facilities from admitting patients who are a danger to self or others (aside from being at risk of leaving the facility), in need of physical or chemical restraints, or have severe cognitive impairments rendering them incapable of expressing needs or making basic care decisions. MONT. CODE ANN. §50-5-226 (2002). Florida law prohibits admission of residents who require 24-hour nursing care. FLA. STAT. ch. 400.426(12) (2003).

[5] See, e.g., IOWA ADMIN. CODE r. 321- 25.23(3)(c)(231C) (2004); TENN. COMP. R. & REGS. 1200-8-11-.05(6) (2004).

[6] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(b) (2003); UTAH ADMIN. CODE 432-270-10(5)(b) (2003).

[7] See, e.g., IDAHO CODE §16.03.22- 422.07.a (Michie 2003); OR. ADMIN. R. 411-056-0020(1)(a)(A) (2004).

[8] See, e.g., ARIZ. ADMIN. CODE R9-10-705.1 & .2 (1998); MISS. REGS. pt. I §A-122.1.b(1) & (2) (2003); MONT. CODE ANN. §50-5-226 (2003); TENN. COMP. R. & REGS. 1200-8-11-.05(8) (2004).

[9] See, e.g., N.M. ADMIN. CODE tit. 7, §8.2.19 (B) (2004); S.D. ADMIN. R. 44:04:04:12.01.(1) (2000); WIS. ADMIN. CODE §HFS83.06(1)(a) 4.a (2000).

[10] See, e.g., MO. REV. STAT. §198.073.1 (2003).

[11] See, e.g., N.J. ADMIN. CODE tit. 8, §36- 4.1(f) (2004).

[12] See, e.g., D.C. CODE ANN. §44- 106.01(e) (2) (2004); MISS. REGS. pt I §L-122.1.b(1) & (2) (2003).

[13] See, e.g., 210 ILL. COMP. STAT. 9/75(c)(5) (2003).

[14] See, e.g., D.C. CODE ANN. §44-106.01.(c) (2004); N.M. ADMIN. CODE tit. 7, §8.2.19 (2004).

[15] See, e.g., FLA. ADMIN. CODE ANN. r. 58A-5.0181(1)(k)(2) (2003); MISS. REGS. pt. I §L-122.1.b(4) (2003).

[16] See, e.g., ARK. CODE ANN. §20-10-1209 (Michie 2004); CAL. HEALTH & SAFETY CODE §1430(b) (West 2003); CONN. GEN. STAT. §19a-550(e) (2003); see also D.C. CODE ANN. §44- 105.05 (2004).

[17] See, e.g., Winkler v. Interim Servs., Inc., 36 F. Supp. 2d 1026 (M.D. Tenn. 1999); Chalfin v. Beverly Enters., Inc., 741 F. Supp. 1162 (E.D. Pa. 1989), reconsideration denied, 745 F. Supp. 1117 (E.D. Pa. 1990). But see Dorn v. McTigue, 157 F. Supp. 2d 37 (D.D.C. 2001).

[18] Beaty v. Manor Care, Inc., No. 02-1720-A, 2003 U.S. Dist. LEXIS 25044 (E.D. Va. Feb. 10, 2003). The case gave rise to a detailed memorandum opinion that upheld liability theories based on actual and constructive fraud, violations of the Virginia Consumer Protection Act, and false advertising.

[19] See, e.g., TENN. CODE ANN. §§ 71-6-101 to 71-6-120 (2002).

[20] See, e.g., Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163 (Tex. App. 1999) (repeated staffing shortages and other acts of negligence supported punitive damages); Estate of McIntyre v. Transitional Health Servs., Inc., No. 2:96CV00424, 1998 U.S. Dist. LEXIS 13965, at *17-18 (M.D.N.C. May 20, 1998) (defendant’s knowledge that it was violating several health codes and its failure to remedy those violations might reasonably be found to constitute reckless indifference to residents’ rights); see also Christopher Vaeth, Allowance of Punitive Damages in Medical Malpractice Action, 35 A.L.R. 5th 145 (1996).

[21] 807 So. 2d 676 (Fla. Dist. Ct. App. 2001).

[22] See, e.g., Walker v. S.E. Ala. Med. Ctr., 545 So. 2d 769, 771 (Ala. 1989) (not requiring plaintiffs to present expert testimony because the alleged breach of care—leaving the bed rail down contrary to doctor’s orders—was so apparent as to be understood by a layperson).



By: Jeffrey Downey

About the Author:

The Basics of International Service of Process

The purpose of this note is to present you arguments to convince you and invite you to employ us for service of Judicial or Extra Judicial documents, Commercial or Civil in the Jurisdictions of Europe. I intent hereto give enough legal and logical arguments about our “Hybrid System”.

International Personal Service of Process (IPSOP) is one of the services of Joseph A. de LA CUETARA, in practice, an International law Attorney providing litigation support services, as well as regular legal services on the European Union. Our services are: Service of Process, taking depositions or evidence, Legal Videographers, Collections, Judgment recovery or enforcing, Legal Research, Exequatur, Inter cultural negotiations (ADR-Mediation, Transactions, Conciliations and Arbitration), briefly, all those aspects of international private relations on the different Hague Conventions. We are registered and insured Attorneys at law, having physical offices in Spain and France and by the virtues of the treaty of Rome, creating the European Union, our legal practice is authorized in all of the European Union’s Jurisdictions.

There are two main methods to choose from when serving documents on the European Union, both methods, are proposed by the Hague Convention of 1965 and have the same legal value, no hierarchy exist between them, but one is less reliable than the other, the legal effects are basically the same. We propose a third method, a mixture of the above which we call “Hybrid”. Any other methods employed are outside the Hague Convention or irregular.

The basic legal methods of the Hague Convention are the following;

One, a public service of the “Judicial Administration” called “Centralized Authority” because it uses the “Government” to transmit documents. Is is intergovernmental, in principle a free service but submitted to economical constrains with high possibilities of no completion.

 

Two, by the use of a service provider, alternative method, called “decentralized”, it can use an “International private process server”, “Mail” or “Local Bailiffs”; All under the Hague Convention regulations, Art. 10. It’s applicability varies with the country’s opposition. As a Private method, it is paid, and therefore submitted to market and quality control.

International Service of Process, by either method, is ruled by two different legal systems, linked by the treaty of the Hague. The main law, called « Lex Fori, » is the law where the documents are issue and where judgment takes place, “Lex fori forum”. These rules, govern service of process validity and recognition in the “lex fori forum”, but not necessarily its effects and legality in the jurisdiction where documents where served, “Lex loci”. Recognition and enforcement by the “Lex loci forum” depend on the respect for internal laws of civil procedure and the procedure of “exequatur” It is then to each “lex fori” and their “foum” to determine their requirements for an “acceptable service” but being their powers limited in space they can not enforce it abroad, so necessarily need to keep in mind that: The act of notification is completed under a different legal system with different exigences, those of a sovereign state which must be taken in consideration, based on International treaties and for future enforcement.

Based on International Legal Principles, we can affirm that a “Lex fori forum” can not accept in a procedure a “foreign illegal procedural actuation”, an act that violates foreign laws.Oon the other hand the “Lex Loci forum” will not enforce a judgment obtained under these circumstances in. Because of this, you must act in harmony with local codes of procedure and the Hague Convention and not only with your own laws,.or, your liability will be engaged in a Criminal or Civil manner.

The Centralized method seems to be the most appropriate and reliable, but it is not, is not mandatory nor exclusive, as explained by the Hague Convention itself (visit the Department of State’s1 web pages for more information). Therefore the “Central Authority” is not the only organ proposed as available to serve documents abroad as is the general believe or as promoted by many translation companies or unscrupulous servers who have created a :”Vox Populi” that takes advantage of ignorance of the treaty, to sell Translations and Apostilles.

Luckily for the legal profession, there are a series of alternatives or decentralized channels, Art. 10 a,b and c of the Convention, often more reliable and always faster and efficient. The method to employ must be in no conflict with the laws of Civil Procedure of both jurisdictions involved and both must be signatory countries as explained in Art. 5,b.: That is a legal harmony of “Lex fori” and “Lex loci”. These laws must be applied simultaneously when serving.

All signatory countries have accepted the “Centralized” method and not all accept all the channels of the the “decentralized method”. In Europe most countries accept both entirely. The reason is that most people believe that the alternate decentralized method does nor exist. The legal text are not interpreted or applied properly as it ends as a “Fraud to International law” and service is Void or Voidable.

The liberty of method is inspired by “International Civil Procedural Liberty” Convention, as expected by the Hague of 1954 giving flexibility to the Convention of 1965. The evolution of both and their application and Interpretation by jurisprudence has given a positive empiric result. Mondialisation of process, which needed a fast way for Judicial information exchange and judgment that adapts to it. World trade, has opened the door to more efficient and fast ways of litigation and serving process, resulting in a gain of time and money by cutting “Red Tape”. Nonetheless, there are limits to this liberty that trensform into critics to the methods and which are based on the need to eliminate some absurds requirements like the risky exam of legality prior to service or the choice given to defendant to refuse service if documents are not translated and the lacunae such as no distinction between service to Individuals or Multinational Companies, Nonresistance of presumptions and many more will see later..

The Hague Convention’s Centralized method has, as said many “legal lacunae” or serious defects:, the main one is that is a free governmental service that does not uses a “fast Independent Private Process Server.”, as is requested by many courts and litigants, it is defective and often deceptive method. It promotes the use costly translation and the contents of summons is exam for legality before they can be served. These requirements makes it slow and therefore not adapted to modern international litigation. It is also contradictory because under the veil of gratuity there are a series of unnecessary expenses that result in an expensive service, more that using private channels. I consider it promotes unnecessary translations because, if documents are not translated, the defendant can refuse service and in other cases the central authority will not be able to exam their legality, Article 5..

It is advisable not to have the documents translated unless you do it properly with the right qualified professional. As a preventive measure, if you do a translation to avoid “possible” future problems, the translation itself can be easily “questioned” in court during enforcement because European courts only accept as valid translations from tindividuals that give the necessary legal guarantees, either by Certification and/or Registration. Is is considered that only those listed each year by the different Courts or the Foreign Affairs Ministries. do reliable translations. There are other “glitches” that appear at the home Jurisdiction but these can be kept at home.

On the other hand, an essential defect of using the Centralized, is the requirement of an exact address of defendant. A problem, because there is no possibility of “locating a defendant” or “Skip tracing” The Central Authority does not “searches” for Individuals or Corporations. If a defendant changes address or the address is not correct , if he is a tourist or illegal, service is paralyzed and returned, waisting your time and money, sending you back to square one while court time is running. Interesting to mention is the situation of corporations which can change the address of the registered headquarters and do not have an immediate obligation to notify this changes to the Mercantile registry. The central authority will not pay tfor any expenses such as access to a mercantile regustry.

Another defect, is in the requirement for “Personal Private Service”, concept that is understood in different ways in different countries: Bailiffs or Local Judicial Officers apply the local Code of Civil Procedure and not the special instructions received from foreign jurisdictions.

In practice, what is understood in Common law as “Personal” is understood in Europe as “Substitute” and the problem increases if we distinguish between service to corporations from service to individuals. When servicing corporations, this must be completed in the person of those individuals who have the power to represent the corporation, that is to say the “officers” publicly listed in the mercantile registry. Therefore service to the front desk, secretary, gardener or any employee of a corporation, is “Substitute service”. For individuals, most local laws allow officers to leave documents at the address specified or leave a note in the door as equivalent of service. These officers, do not need to understand the hierarchy of the Hague Convention in this sense and what are the “Lex fori Forums” needs . Instructions for service to the central authority, transform into let’s do it our legal which is not necessarily valid on the other jurisdiction.

Remark therefore, that the use of “insistence and perseverance” is not possible by the “Centralized method”, its efficiency is not good and it is only, by the use of a private personal server that you can achive the best results, have more legal security on service and what is the most relevant, you will be courteous to your adversary and sure of your case.

These above reasons explain why most Common Law Attorneys have used as many many “tricks” as possible or patches to remove these obstacles of the “Central” method, I do not blame them. Sometimes by the use of “an agent” which often is, their local process server, their friendly “tacky” translation company or their neighborhood’s Private Investigators. The reality is, that on the long run, not only they have waisted time and money but they are liable of fraud to international law, defamation, Ilegal practice of law,Revelation of Secrets… and to complete the apocalypse, if not prosecuted or challenged, the judgment obtained will not pass “Exequatur”.(Enforcement).

No doubt then, that ignoring European laws, rights of image and privacy amongst other can happen and can have undesired consequences. Jurisprudence has considered that services completed this ways as irregular and have engage the liability of the plaintiff.

The “Lex fori forum” and “Plaintiff’s Attorney” are obliged ex-lege to respect the lex-loci or the legal requirements of the jurisdiction where documents will be served and these starts at home with confidentiality, secrecy and a proper translation of documents as the basic right of defendant.

Service of Process must protect the defendant abroad. It is my understanding that “Lex fori” process servers, Non Certified Translations Companies, even with offices in Europe and other intruders in the chain of International litigation can severely contaminate a case.

There are, a series of channels in an “alternatives or decentralized method” , more reliable and with more efficient ways to serve, these are replacing the anachronistic central method.

Centralized Service of Process has the following characteristics:

Translations, High Cost and Unnecessary

Service Speed: Slow and can paralize eassily

Prior Exam of legality Slows down

Contradictions and exact Address required

Non Personal Service, No Courtesy and No Confidentiality

 

 

The Hague’s Alternative method of International Service of Process

The Alternative method is composed by channels , using them has the same legal value and effects as the “Centralized” method, if the country of “Lex Loci” has presented no express opposition to them,.there is no hierarchy between “Centralized” and “Decentralized” methods.

Art. 10 a, Service by a Currier, UPS, Fedex, DHL, Postal, fax, internet (email or messenger), as confirmed by different jurisprudence are not reliable, even if they are contemplated and accepted in some countries. The reason is that they lack of “legal guarantees of delivery of contents” violating the Principle of Contradiction,and Equality in a fair Judgement. These channels can bring the defendant into “defenseless”. Therefore they are mostly considered by jurisprudence as “evidence of an address” more than evidence of a Legal Notification. The Hague Convention permits these in Article 10, but they require some logical complements to be “Legally binding” even if the Convention does not indicates those. Indeed, one can serve blanc pages by mail or fax since nobody will check the contents and thereto obtain a judgment by default. Because of this, I recommend a “Certification of Contents” necessary either on the sending Jurisdictions or in the receiving Jurisdiction by a qualified, but done by a qualified professional that has “Public trust” The postal of fax receipt are not an affidavit.

Understand that the objective of service of process abroad is transmitting information, a legal notification to a defendant, inform him of a “cause” in which he is part and which could have serious consequences in his patrimony, rights and obligations as they will in your own jurisdiction.

These rights must be respected and protected by the rules of the legal art in order to avoid Arbitrary application of law and fraud to International law. To avoid this, the Hague Convention canalizes these notifications by taking in consideration internal laws Art. 5 but without providing a way to control it or a procedure for appeal..It imposes the protection of defendant’s rights and obligations as well as those of the plaintiff but does not says exactly how this could be materialized. Please determine, not if the notification was done but if it was “properly done. Service by mail, fax or email are very fragile channels that must be avoided..

These alternate channels are symbol of the “Liberty of Transmittal” but have enter into excesses, for exqample the email, reason why the decentralized method, has been wrongly understood by many Common law Attorneys,. Translators and Private Agents. This happened because the “mechanism of service” applied and employed has been the “known one” the one that sound logical, unconsciously applied in violation of foreign laws. Professionals have use what they know, as a reflex, they have used the same manners as for their state notifications and have sent abroad a joke. This has resulted, in failure to enforce, impossibility of judgment recovery or simply a challenged of service. A distinction must be made between a banal Service of Process and an International Service of Process and to honor international justice even if the effects of your judgment will remain in your jurisdiction do that international service properly, is just a matter of International legal courtesy.

The philosophy behind and the rational explanation, is that the concept of “Public trust” is very different to each culture and their legal order. Think about that opposite to Europe,- No Governmental Identification Card exist in common law countries, there is no central land and/or property registry, sometimes Notaries are simple individuals, Process Server and/or Translators have minimal requirements. In old and experienced Europe, everything is “suspicious” and therefore surrounded by the maximum guarantees of legal security enforced by the state at “Felony or Criminal level” to avoid any possible “misunderstanding”, “fraud”,”deviation” or “Abuse”.

In Europe. service of process, either for internal purposes, European Purposes or for International foreign courts, is considered as a penetration of “Jurisdictional Power”, when completed it is actually a “delegation of powers” to the server. In Europe. the monopoly of legal representation, actuation and consultation, has been given, traditionally and since middle ages, to the different “Legal Corporations”. Private agents are excluded of these basic requirements.

The legal professional associations are those of “Huissiers de Justice”,”Procuradores”, “Ufficiali Judiciario”,”Abogados”,”Avocats”,”Advogados”…. Unlike common law countries where almost anyone mentaly capable can perform these “legal contents and jurisdictional acts”. Please, know that only qualified legal professionals can serve properly and legally in most of Europe since are the only professionals, who can offer “Ex-lege” the required and necessary legal guarantees. Service by a “Agent” as known in common law does not exist in Europe nor in the Hague Convention, it has been used but this usage does not rises service by agents to a legal stage.

Logically explained: If any country’s laws of Civil Procedure establishes for internal service of process, a procedure that requires guarantees of public trust; given only by the use qualified professionals, how come, for International Service, you can expect to use anyone? An agent? In conclusion: When in Rome, do as the Romans!

We must distinguish between communications to the Central authority or with the Server and notification or service of process to the defendant. One is an organ and the other a defendant. Communication with the Central Authority of to the server can be by any means, even e-mail

Also note that the Hague Convention obliges service of process to have two explicit and implicit

requirements for acceptance: voluntarily and knowingly. These can be compared to a “bilateral obligation in Civil Law” (See Article 5 (b) alinea of the Hague Convention). Therefore, if the defendant

is not ”capable to understand” what he is receiving, service is viced and the “Defendant can refuse

service”. If documents are not translated he is not “capable to understand”. The defendant is not sense to know foreign laws or could be economically challenged, but some presumption exist: If the defendant is not served multilingual Attorney at law and advise at the moment of Service or if the documents contain No Legal Notice and etceteras, the defendant is in “Procedural defenseless”.and therefore service of process is not valid and useless.

Service to Corporations doing International Business, those under the Hague of 1956 for “Company recognition” it must be presumed that they speak the language of the Jurisdiction in which the carry business and know their laws. The Hague Convention does not distinguishes between services according to defendant; Individual or Corporations. Therefore, I consider the Hague as placing an obstacle in service to corporations, since the plaintiff is oblige to translate the documents. Logically Corporations should never use the central authority, they do not need it.

The Hague Convention indicates “voluntary acceptance” as a condition of service, this does not mean “Refusal at all times and systematically to get civil or commercial impunity”. In this sense, service by Certified Mail, email, fax and other unilateral acts of service, which we can be consider as “Adherence” from defendant to service, have the common denominator that the defendant is not accepting voluntarily, since he is receiving something with unknown contents. The contents will discover later and he is accepting first, therefore contradicting the Hague convention confirming this way that these channels as good for a verification of an address but not of service.

In conclusion, Certified Mail, email and fax are not proper ways of serving and a Court accepting this kind of service are refusing rights to the defendant except if they are back up by a qualified professional’s Affidavit of service.

“Service by Agent” as understood in common law, is not contemplated in the Hague Convention on Service of Process, it is another automatic reflex and has been used by many common law Attorneys. These agent services have required translations of documents because the Agent used, in most cases speaks the language of the Attorney requiring service. Often he is a foreign national in the country of service, sometimes illegal, but in any case not qualify to do this kind of Job. They provide “Shaky” services based on the fact that they speaks the language of the Attorney requiring service and dare to violate all kinds of laws, anyways most of them have nothing to loose..

These “Merchants of Process serving” use translations to increase profit and to reduce the possibility of future challenge of service. In most European countries, it is considered. that “Legal Guarantees”, are only given to, and are given by ”registered and insured professionals, recognized and controlled by the governments and grouped in special associations or corporations submitted to strict ethics control: These agents are an insult to law and order. The law and confirmed Jurisprudence protects “defendant’s rights” against poor « qualities and qualifications » of a “dummy server” or anyone from here or there, an intruder, who for a “fist full of dollars” will issue an affidavit. Therefore service by “Agent” is possible if and only if the Agent to be used is a qualified legal professional in the country of service.

It is a interesting anecdote, that I found an “International service of process company in Spain” that also does “plumbing” services from the same office, a business run by a felon issuing affidavits even to service completed to non existing address or people he never saw..

It is a shame that Justices and Attorneys in North America often, accept, for international service of process, affidavits of persons that do not offer any guarantees or have the essential “Public trust”, looking down and with disrespect the rights of defendants and the laws of procedure of a foreign country. Indeed, employing anyone for international service of process, is a disregard on justice and disrespect for International and local law. To serve properly you must respect foreign laws of procedure! You must understand the European concepts involved in a “Procedural Notification” and respect for “Justice”.

Finally, art. 10 c, considers as “Agent” a Judicial officer or bailiff. Service by these agent depend on the kind of person to served: Physical or Juridical. In some jurisdictions, serving a corporation must be to a “Registered Officer” as it appears on the mercantile registry of their country or to their legal department or representative and the place of service has to be the registered headquarters otherwise it will be a substitute service (Individuals or Corporations can be served at their Attorney’s office). If Individuals, an agent can served them at their home or place of work., but not in a public place.

One excess of the Hague Convention is the requirement for an exact address for service, meaning that the requester must have the exact information. This requirement reduces the rights of the plaintiff since a qualified legal professional acting as agent can complete service to two addresses to avoid impunity of defendants, that is to say, serve the address in the writ of summons and the legal or present address.

Service can be completed by directly instructing a Judicial officer of a Bailiff, article 10 c of the Convention, employing them as organ and as server, but they will issue am “Act” or document in the official language of the country, you will have to pay for a supplent for translation into English language and eventually the legalization of signature. Our Hydrid service take’s care of everything.

Please remember, the principle in Europe is the “Protection of the rights and obligations of litigants” by due diligence completed with integrity and by qualified and reliable professional not an “affidavit” obtained in obscure circumstances at any judicial cause price or at justice expense.

Summarizing: The two main methods both have the same legal value within the Hague Convention and no “Hierarchy”exist amongst them, one is bad and the other is worse, they are equally poor, but combining them is possible and results into a more reliable international service:

WARNING: Translations and Apostilles (Legalizations) are not necessary but if you use them remember that the Translator must be “Certified” by the “Foreign Affairs department” or the “Local Appellate or Superior Court”. The use of a local Notary Public to certify the signature in a translation does not corrects the errors of “tacky” translations. The use of a non registered “Attorneys at Law” under most jurisdictions of the European Union for acts reserved to the legal profession causes “contamination of your case”, engaging your liability: Protecting the rights of litigants is your obligation. Do not use simply anyone willing to issue a statement of service affidavit if not qualified.

 

Inventing International Service of Process: The Hybrid system

 

Our “Hybrid system of international personal private service of process” combines, not only “methods”, but also the different channels or options of the convention, applied by steps and in less time that the “centralized”. The result is a better service that takes the positive side of each method in order to obtain the best legal guarantees: We consider it as “System” , more than a method, please consult us so we can discuss your case service in detail and how our system applies.

The hybrid system for International Service of Process, heals the disadvantages of the Hague Conference’s centralized method and the abuses in the use and application of the decentralized alternate method. It is a non complicated service of process having the characteristics of Legality, reliability and fast. On the other hand, the “system” applies the principles of the Hague Convention combined to each jurisdiction, incoming and outgoing, and their respective laws of procedure. The “legal order” is to obtain with the maximum legality and protection of litigants, its main characteristic is that: Service is double, a preliminary International service and an Euro service.

The system provides that the rights of the plaintiff and defendants are guarantee and protected by registered and insured multilingual Attorneys at Law in the country of service. Documents are delivered personally in all confidentiality by a legal professional who will give advise in the language of the defendant, making it comprehensive by giving complete legal notice and explaining how to proceed. All services are completed with mandatory secrecy and neutrality, Courtesy and professionalism under the respect for internal laws of Civil procedure.

The defendant does not have an option to refuse service, or claim to be “unprotected” there is no “a priori” exam of contents or delay, no translation’s cost or apostilles, no promises of service but a “Jurisdictional act completed according to local law by a qualified legal professional”, Note the advantages;

a. The defendant does not have an option to refuse service, or claim to be “unprotected”

b. Liberty to choose process server within the legal profession market value.

c. There is no “a priori” exam of contents or delay in exams

d. No translation’s cost Nor apostilles, stapples,stamps or clips!

e. No doubt on delivery of Contents

e. Service with “Professional Integrity”

f. Customer service and Affidavit in English

g. Une of Bailiff when required

h. Service is guaranteed in delivery

i. Service is guaranteed in court

…..and much more

 

 

Our price list, reflect the need of taking in consideration many legal and practical aspects of service in Europe, specially to avoid incidents and possible cchallenge, appellate “quash” proceeding”, we provide services that are cheaper than the “Centralized” method and with the same value.

 

The different classes of service we proposed vary according to the required time for service: Urgent, and each has different protections. We always start by a “Skip Trace or Locate” in order to obtain an exact address as per mandatory requirement of the Hague Convention and to avoid you unnecessary expenses, then we mail a preliminary service of process to verify the address of delivery and physical existence. Our letter, asking for an appointment or an interview and placing ourselves as neutral Attorneys at Law available as required by law to avoid defenseless by counseling the defendant. During the interview, in presence of a local Judicial Officer or Bailiff when required, we verify the identity of the receiver, his knowledge of the language in which documents are written and explain in detail their rights and obligations. All of this procedure is condensed in a Custom made affidavit that is legalized by the Notary Public of the diplomatic representation of the lex fori (That is to say: the Consul)..

We hope we will count with you amongst our clients, please visit our website for forms, and do not hesitate to contact us by telephone, from U.S. dial 011 33 4 93 16 27 38 or by email if you have any questions or need written legal advise.

Thanking you in advance for your time and consideration, I am,

Joseph A. de LA CUETARA

http://servefast.eu/

 

 

 

 

1Please note that the U.S. Department of State website misguides persons requiring service of process abroad The U.S. Consulates are prohibited from serving or recommending Servers or Attorneys , therefore the list of Attorneys they maintain in each city has “obscure” origins..

 



By: Joe CUETARA

About the Author:

PORTLAND, ME (September 22, 2008) – Forty-four lawyers from Verrill Dana, LLP were recently selected by their peers for inclusion in The Best Lawyers in America® 2009 (Copyright 2008 by Woodward/White, Inc., of Aiken, S.C.).

The attorneys included are:

Portland Office:

David S. Abramson (Family Law, Sports Law)

Eric D. Altholz (Employee Benefits Law, Health Care Law)

Lisa S. Boehm (Employee Benefits Law)

Robert C. Brooks (Workers’ Compensation Law)

Juliet T. Browne (Environmental Law)

Anthony M. Calcagni (Real Estate Law)

Roger A. Clement, Jr. (Bankruptcy and Creditor-Debtor Rights Law)

Judith M. Coburn (Trusts and Estates)

Christopher J.W. Coggeshall (Real Estate Law)

James I. Cohen (Government Relations Law)

Kimberly S. Couch (Employee Benefits Law)

Douglas P. Currier (Labor and Employment Law)

Beth Dobson (Administrative Law, Banking Law, Health Care Law)

Jonathan R. Doolittle (Bankruptcy and Creditor-Debtor Rights Law)

William M. Fletcher (Real Estate Law)

Gregory S. Fryer (Corporate Law, Mergers and Acquisitions Law, Securities Law)

David L. Galgay, Jr. (Real Estate Law)

John P. Giffune (Construction Law)

Gregg H. Ginn (Employee Benefits Law)

James G. Goggin (Intellectual Property Law)

Mark K. Googins (Banking Law, Corporate Law, Mergers and Acquisitions Law)

William S. Harwood (Administrative Law, Energy Law)

David C. Hillman (Bankruptcy and Creditor-Debtor Rights Law)

Keith C. Jones (Corporate Law, Mergers and Acquisitions Law, Securities Law)

James T. Kilbreth (Commercial Litigation, Environmental Law, Natural Resources Law)

Kurt E. Klebe (Trusts and Estates)

Alan D. MacEwan (Corporate Law)

Christopher S. McLoon (Corporate Law, Tax Law)

Mary McQuillen (Trusts and Estates)

Suzanne E. Meeker (Employee Benefits Law)

Richard G. Moon (Labor and Employment Law)

Charles R. Oestreicher (Real Estate Law)

James C. Palmer (Real Estate Law)

Alexia Pappas (White Collar Criminal Defense)

A. Robert Ruesch (Construction Law)

Christopher R. Smith (Corporate Law)

William H. Stiles (Health Care Law)

David E. Warren (Corporate Law)

Peter B. Webster (Corporate Law)

Boston Office:

Gene D. Dahmen (Family Law)

George P. Field (Commercial Litigation)

Augusta Office:

Peter B. Bickerman (Administrative Law, Appellate Law)

Michael V. Saxl (Government Relations Law)

Hartford Office:

Diane M. Fitzgerald (Employee Benefits Law)

Since its inception in 1983, The Best Lawyers in America® has become universally regarded as the definitive guide to legal excellence in the United States.  The current, 15th edition compiles more than 2 million responses from leading attorneys to an exhaustive survey regarding the legal expertise of their professional peers.  Because Best Lawyers is based on this confidential survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.  The American Lawyer magazine has called Best Lawyers “the most respected list of attorneys in practice.”

About Verrill Dana:

Verrill Dana, LLP is a full-service law firm with more than 100 attorneys conducting a nationwide practice from offices in Portland, and Augusta, Maine; Boston; Hartford; and Washington, D.C. To learn more, visit our website at www.verrilldana.com.



By: lplank

About the Author:

While the Courts have never brightly defined under the law who actually has a right to own a firearm, for decades the presumption has always been that there is no individual right bestowed upon the citizens of this country. However, things may soon change if some have their way.

The Second Amendment to the United States Constitution is currently creating a quite a stir in the federal courts. For those that are not familiar with the Second Amendment, it provides as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Experts believe that the Second Amendment creates an unlimited right upon individuals to own guns or other weapons. Others disagree and seem to believe that the Second Amendment allows reasonable regulation of gun ownership, such as licensing and registration.

The United States Supreme Court may be putting this issue to rest soon. The question of whether or not an individual has a constitutional right under federal law to own a firearm is being heard in the case District of Columbia v. Heller, No. 07-290. The court granted certiorari in response to an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), which was a decision from the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment. The appellate court then took it a step further and held that the Second Amendment does protect an individual’s right to possess firearms for private use.

A victory for Heller will likely inspire acknowledged gun owners in other jurisdictions to challenge restrictive gun laws passed by states and cities. Accordingly, many commentaries believe that the Supreme Court appears poised to rule that the Second Amendment protects a private right to possess and use firearms.

Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? Moreover, does “arms” mean you can have absolutely any kind of weapon you want, or does the government have the right to say which arms are permitted and which are not? Hopefully, the United States Supreme Court will soon answer these questions for us.



By: Neil Lemons

About the Author:

What are the Pros and Cons of Appellate Practice?

When you are fighting a legal case then it is first conducted in trial courts. If a party whose case was being conducted in the lower court loses, then they can apply in the higher court – United States Supreme Court and state Supreme Court. Here you need or require the help of an appellate lawyer who can help you appeal at the higher court. Appellate is related to appeals that are made to A. Higher court known as appellate court by the party who has lost his or her case at the trial court. At the appellate court the decisions of the lower courts are reviewed. The appellate lawyer focuses during his practice on advocating cases before the federal and state appellate courts which includes the United States Supreme Court and state Supreme Courts. The main work of the appellate lawyers is to correct errors of the lower court judges and change the law by swaying appellate courts to turn over the trial court decisions or even change or expand the interpretation of the statutory law.

The creator and the proud owner of the well known job search portal BCG Search.com, A. Harrison Barnes, is of the view that the appellate lawyers play a very vital role in the proceedings of the higher courts. The demand of appellate attorneys is increasing in every state. The appellate attorneys are the ones who will attack discretionary judgment or orders made by a lower court. The appellate courts legitimately interfere in the orders made by the trial courts. In pursuing the higher court to interfere in the decisions of the trial courts you need an appellate attorney. The main work of the appellate attorney to satisfy the appellate court that the order passed by the lower court stands outside the limits of the sound discretionary judgment or was simply wrong before it interferes.

It is the duty of the appellate attorneys to review and analyze the trial records and other legal documents, says A. Harrison Barnes. They have to analyze the law of the researched case. The appellate lawyers draft appellate documents and persuasive briefs. They are the ones who have to urge in the appellate courts before its judges. They even have to assist trial counsel in placing the issues on trial and also maintain the record of the appeal.

The appellate practices vary from state to state and from federal district to federal district, informs A. Harrison Barnes. But this at times acts as a disadvantage for the lawyers who are practicing in the appellate field. They need to know the rules and laws particular to the federal district or the state. They cannot even travel to any other state or federal district or even to any other nation.

Qualification and Experience Required for Appellate Practice

The appellate attorneys have a J.D. degree (Juris Doctor) and normally have important trial experience. The full time students usually graduate in six semesters (three years). The part time students usually graduate in eight semesters (four years). The high quality legal education that the candidates receive at the law institutes provides them with the knowledge and skills and ethical concepts which allow them to function as competent appellate lawyers. It also allows them to think critically about the efficacy of the law and legal institutions and to work for the improvement of their legal careers. The students may choose to take externships, where they earn academic credit for working at non-profit organizations or government agencies, says A. Harrison Barnes. The students may also choose from one of several legal clinics where they handle real cases under the supervision of a faculty member.

Skills

They need to have exceptional research skills along with writing and analytical skills which are important to write legal memoranda, persuasive briefs and other documents. They even need to have a good practical knowledge about the various areas of law; they should be familiar with the appellate practice. They should even have oral advocacy skills along with great interpersonal skills, Barnes recommends.

As Barnes says, the appellate lawyers mainly deal with judgments that are appealable. Their duties are to see how appeals are presented before the appellate court, what will be required for the reversal of the decision of the lower or trial court and also the procedures that both the parties should follow. The appellate lawyers are also involved in the issues related to the challenging and posting of appellate bonds, writs of restitution, habeas corpus, quo mandate, execution and certiorari, post verdict motions and many other issues.



By: Elizabeth Martinez

About the Author:

st mount a strong defense when facing federal criminal charges.

Almost all federal convictions carry prison time. When the federal sentencing guidelines were changed in the late 1980s in an effort to make sentencing fairer across the myriad federal court districts across the country, only sentences involving prison time were used in the sentencing commission’s calculations. When drafting the federal sentencing guidelines, the Sentencing Commission practically forgot that probation ever existed. Now, for most federal crimes, you serve prison time and then are put on supervised release. The probation now comes after the sentence, instead of in place of it.

This change and the federal system’s speed make a specialized, effective defense necessary from the beginning. In many federal districts, trials are set no more than sixty days from the date of arraignment, and the United States Attorney for that particular district will have only pursued cases they strongly believe they can win. Often times, federal investigations go on for months or years before the case is actually brought to the grand jury for indictment. In many cases, the evidence is voluminous – there are recordings and data records to review, and multiple witnesses to conceivably interview. Counsel familiar with federal criminal procedure and the judicial district’s local rules is a must.

At the point of indictment, the government will then determine whether they want you held pending trial. The only way you will be able to remain free pending the resolution of your case is if you show the trial or magistrate judge that you have sufficient community ties to remain free. The magistrate or trial judge ultimately decides whether the government’s request to hold you pending trial is valid. In practically no cases do you get to exercise your right to a preliminary hearing in criminal federal court before an indictment is handed down.

Once arraigned, the district court will issue a scheduling order setting out specific deadlines for your case. This scheduling order is largely firm, save the showing of extraordinary circumstances. A good federal criminal lawyer will not only be experienced, but also organized and efficient, or else your defense will suffer. The harshness of the federal sentencing guidelines makes any mistake unforgivable. The best place for you to mount your defense is at the district court, or trial court. One should view the district court as the front line of their defense – the circuit, or appellate court, is not the place where one should expect to exert their rights.

Once charge with a federal crime, it is vital that you retain defense counsel quickly. Delays in your defense only work to make it more likely you will be successfully prosecuted and convicted. Pursuing an avid defense is important as most federal criminal convictions result in some sort of jail time.

By: Nathan Moore

About the Author:

The Division of Insurance of the Office of Consumer Affairs and Business Regulations has, as part of its structure, a board which hears appeals from decisions of the Massachusetts Registry of Motor Vehicles.  Known formally as the Board of Appeal on Motor Vehicle Liability Policies and Bonds, it is comprised of 3 members with the Registrar and Attorney General each designating one member, and the Commissioner of Insurance designating a member who serves as the Board’s Chairman.

Pursuant to G.L. c. 90 § 28, the Board of Appeal has the power to affirm, modify, or annul virtually any decision of the Massachusetts Registry of Motor Vehicles. The Board exercises this power very carefully and responsibly. Board of Appeal hearings are recorded and witnesses testify under oath. The Board has subpoena power and it can order the production of books, papers, agreements, and documents. Anyone who testifies falsely in front of the Board can be prosecuted for perjury. The Board of Appeal can seek enforcement of its orders by the Massachusetts Courts.

Many who come before the Board have their licenses suspended or revoked and they are seeking a hardship license, which is a license valid for 12 hours each day which is issued for work, school, or educational purposes. When hearing hardship license appeals, the Board very carefully balances the appellant’s need to drive with any risk to public safety associated with granting the license. The Board makes a careful and detailed inquiry into each case and it is always mindful of the risks associated with granting a hardship license.

In order to succeed in a hardship license case, the appellant must present key information to convincingly address his or her need to drive as well as the likelihood of recidivism. To get a hardship license from the Board, the Appellant must prove that he or she has a compelling and legitimate need to drive, such that the lack of a license presents an extreme and severe hardship. Next, the appellant must prove that the causes of his or her past or present problems have been brought under control such that the lives and safety of the public would not be endangered by the issuance of a hardship license. There are many different ways which an appellant can make the evidentiary showing required to get a hardship license. Hiring an attorney who specializes in Board of Appeal cases can often make the difference between getting a hardship license or being forced to serve a long and painful license suspension.

To save money, many who come before the Board of Appeal try to represent themselves or they hire a lawyer who is not familiar with how the Board of Appeal operates. Either of these actions can result in the Board voting to affirm the Registry’s decision, without providing a re-apply date. This means that the appellant cannot appear before the Board of Appeal again without getting permission in advance and in most cases, he or she must serve out the license suspension. Trying it on your own in front of the Board often results in a loss with no viable chance of appeal to the courts.

The Board’s decisions can be appealed to Superior Court pursuant to G.L. c. 30A  § 14, the Massachusetts Administrative Procedures  Act. However, to succeed, the appellant must prove that the Board’s decision was unconstitutional, not supported by substantial evidence, exceeded the Board’s authority, was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.  Given the tremendous discretion which the Board of Appeal has, it is next to impossible to win a superior court appeal of the Board’s denial of a hardship license.  Therefore, for all intents and purposes, the Board’s decision regarding hardship licensing is final. It is for this reason that it is imperative to hire a lawyer who specializes in Massachusetts Board of Appeal cases. Trying to represent yourself or hiring the wrong lawyer may cost you your license.

In addition to hearing hardship license appeals, the Board of Appeal also hears other types of appeals from RMV decisions. For example, the Registry may have improperly suspended someone’s license or denied an applicant a driver’s license. The Board also hears appeals from inspection station owners who have had their inspection station licenses suspended. Many people have tried to unsuccessfully challenge the legal requirement to have an ignition interlock device in their vehicles. The Board summarily denies theses appeals, because the law requires the mandatory use of interlock devices for certain repeat offenders.

Most people are unaware of the Board of Appeal, its powers, and procedures. Most people only learn about the Board’s existence after being aggrieved by a decision of the Registry of Motor Vehicles. This lack of knowledge about the Board of Appeal and how it works may cause appellants to fail to adequately prepare their cases and not hire effective legal representation. These uninformed decisions can result in a negative outcome which is not easily reversed. The Board requires solid, credible, and properly presented evidence to support the requested action, whether it be the issuance of a hardship license or a reversal of a license suspension or revocation.  By effectively presenting this type of evidence, you will dramatically increase your chances of getting back on the road legally.



By: Brian Simoneau

About the Author:

New York must recognize same-sex marriages conducted in other states, until another appeals court rules otherwise. This was held by the New York State Supreme Court, Appellate Division, Fourth Department, this past Friday, February 1, 2008.

The decision in Martinez v. County of Monroe arose out of Martinez’s quest to obtain spousal health care benefits from Monroe Community College for Lisa Golden, whom she married in Ontario, Canada. Where the marriage was performed was legal, there was no question. And then they returned to New York.

In the absence of a New York statute forbidding same-sex marriage, the Court found no reason not to recognize the marriage. It held that the marriage "is entitled to recognition in New York State." Is this a silent invitation to the New York State legislature to pass a law deciding this issue one way or the other? Maybe.

After the lawsuit was started but before the court’s decision, the college changed its health insurance policy to cover same-sex spouses. This gave rise to an interesting wrinkle in this case, for if Lisa Golden was getting health insurance anyway, what was there left to sue over? In legal terms we ask if there was any longer a "justiciable controversy." The Court said that there was, as the college would be liable for damages for the time period that it refused to give health insurance coverage to the plaintiff’s spouse. We don’t know if those damages are great or small. They might be the cost of Lisa Golden going to the doctor’s office, or her out-of-pocket expense to purchase her own health insurance or whatever.

Thus, it seems that the court had a potential way out here if it wanted to duck the controversy entirely. It may have decided that since the college is now providing health benefits, there wasn’t justiciable controversy so the lawsuit was "moot." Instead, the court waded in and addressed the gay marriage issue head-on, giving a favorable and enlightened reading to the facts before it. No cowards on this Appellate Division, Fourth Department panel.

Commentary: Gay advocates hail the decision as only a first step towards what they consider truly would be fair: permitting gay marriages in New York State. I and my lawyer friends look forward to the day when gay marriage is legal in New York; where there are gay marriages, there WILL be gay divorces.

Until another appeals court rules otherwise, New York must recognize same-sex marriages conducted in other states. So held the New York State Supreme Court, Appellate Division, Fourth Department this past Friday, February 1, 2008.

The decision in Martinez v. County of Monroe arose out of Martinez’s quest to obtain spousal health care benefits from Monroe Community College for Lisa Golden, whom she married in Ontario, Canada. Where the marriage was performed was legal, there was no question. And then they returned to New York.

In the absence of a New York statute forbidding same-sex marriage, the Court found no reason not to recognize the marriage. It held that the marriage "is entitled to recognition in New York State." Is this a silent invitation to the New York State legislature to pass a law deciding this issue one way or the other? Maybe.

After the lawsuit was started but before the court’s decision, the college changed its health insurance policy to cover same-sex spouses. This gave rise to an interesting wrinkle in this case, for if Lisa Golden was getting health insurance anyway, what was there left to sue over? In legal terms we ask if there was any longer a "justiciable controversy." The Court said that there was, as the college would be liable for damages for the time period that it refused to give health insurance coverage to the plaintiff’s spouse. We don’t know if those damages are great or small. They might be the cost of Lisa Golden going to the doctor’s office, or her out-of-pocket expense to purchase her own health insurance or whatever.

Thus, it seems that the court had a potential way out here if it wanted to duck the controversy entirely. It may have decided that since the college is now providing health benefits, there wasn’t justiciable controversy so the lawsuit was "moot." Instead, the court waded in and addressed the gay marriage issue head-on, giving a favorable and enlightened reading to the facts before it. No cowards on this Appellate Division, Fourth Department panel.

Commentary: Gay advocates hail the decision as only a first step towards what they consider truly would be fair: permitting gay marriages in New York State. I and my lawyer friends look forward to the day when gay marriage is legal in New York; where there are gay marriages, there WILL be gay divorces.



By: Gary E Rosenberg

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end up in court over your divorce, the judge will decide the issues you and your spouse are still disputing. If you are unhappy with the decree, you may be able to “appeal” the court’s order. If you are considering an appeal, there are a few things you need to bear in mind.

Appeals are expensive. The first thing you will need to do is notify the trial court of your intention to appeal its order. You will have to pay a filing fee to the appellate court. Next, you will have to pay to have the evidence prepared, and to have the proceeding in the trial court “transcribed”, which is a word for word typed document of everything that occurred at your final hearing. You will have to pay an attorney to read the transcript, and prepare a brief for the appellate court.

Next, your spouse has an opportunity to respond to your brief, and to set out any grievances he / she may have with the trial court decision. You and your attorney respond to this brief, and the case is finally submitted to the court.

Several months can elapse before you hear whether your appeal was successful. If the trial court is not “affirmed” by the appeals court, several things can happen. The trial judge can be ordered to amend his / her order to comply with the appeals’ court’s decision. The appeals court’s decision could result in an entire new final hearing. If that happens, your divorce is still final, but the other issues are still up for grabs.

If your spouse agreed with the trial court, he / she can ask that your state’s supreme Court overturn the appeals court. If the supreme court agrees with the trial court, it can overturn the appeals court. If it partially agrees with the appeals court, and partially agrees with the trial court, it can reverse the appeals court and send the case back to the trial court to have the judge correct that portion of it’s original decree that the supreme court didn’t like. If it agrees with the appeals court, and the appeals court affirmed the trial court, all remedies are exhausted, and the trial court’s original decision still stands.

The supreme court can also refuse “certiary”, which means it doesn’t think the issues of the case are important or that its issues are so well settled by prior rulings that they don’t require further action. In short, appeals are only for the rich, or at least the fairly well-to-do.

Even if you do decide to appeal, you should understand that the appeals court is very limited in the relief it can grant. Generally, if there was any evidence that supported the trial court’s decision, it will be upheld. This means that if 20 witnesses say one thing, and 1 witness says another, the court is considered to have enough information to rule, even if it relies on the statements of the 1 witness. The trial court actually meets the parties and their witnesses, and is thus considered to be in a better position to judge the credibility of their statements. Thus, unless the trial court applies the wrong law, or applies the right law in the wrong way, it will be sustained by the higher courts.

By: Lucille Uttermohlen

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Though the welding industry continues to vigorously defend itself against a growing tidal wave of welding rod litigation, it was dealt a serious blow in March 2006 when its repeated attempts to overturn a welding rod fumes case failed in the Illinois Supreme Court. The case is a landmark in welding rod litigation, in which former welders claim that exposure to fumes from welding rods caused manganism and even Parkinson’s disease.

The Original Case

Though several welding rod cases have produced multi-million dollar settlements, the original case in question is a landmark because it is the only welding rod verdict ever decided in favor of the plaintiff. The case, entitled Elam v. A.O. Smith, contended that the plaintiff, a 64-year-old Illinois welder who worked in the profession for 30 years, suffered neurological damage from long-term exposure to the toxic fumes that are a byproduct of welding rods. The case was previously tried before a hung jury (Illinois law demands a unanimous jury); Jack Elam was awarded $1 million in compensation during the retrial. The jury found that A.O. Smith failed to provide adequate safety warnings about the dangers of manganese in welding rod fumes.

The verdict was a watershed in more ways than one – it unleashed a wave of welding rod litigation once attorneys knew that it was possible for a verdict to be awarded in the plaintiff’s favor. The welding rod cases have become so numerous that a multi-district litigation is underway in Ohio; it numbers well over 3,000 plaintiffs.

Lost on Appeal

The defendants in the original case quickly appealed the case, contending that it did in fact adequately warn workers of the dangers of working with welding rod fumes. However, in December 2005, the 5th District Appellate Court of Illinois found that the company did not warn workers adequately, upholding the $1 million verdict. The court was taken before the Illinois Supreme Court on second appeal. Because of this, former welders filing litigation to receive compensation had elevated hopes of effectively winning future cases while the welding industry struggled to cope with the verdict.

Former Welders Cling to Hope; Continue to Litigate

Despite the fact that the $1 million verdict is the only one ever given to a welding rod litigant, former welders who are suffering from Parkinson’s, manganism and other occupational illnesses related to their welding work are retaining hope. Experienced welding rod lawyers believe that the Elam v. A.O. Smith will set a precedent that allows other litigants to collect damages for their occupational exposure to manganese. If you are suffering health problems due to your work as a welder, contact a doctor and then an experienced welding rod litigation attorney who can analyze your case and tell you whether you may be qualified to monetary damages.



By: Alan Haburchak

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