Archive for April, 2010
Friday, April 23rd, 2010
The short answer is no. The Federal Bankruptcy Code provides debtors protection against discriminatory treatment for having filed a Chapter 7 or Chapter 11 bankruptcy. The law says “no private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor” under the Bankruptcy law. You are likewise protected from firing if you do not pay a debt that is dischargeable in bankruptcy or that was discharged in bankruptcy.
On the other hand, if as part of your employment solicitation for a new job, you have a bad credit report, or the future employer finds out about a bankruptcy from your credit report, they might get away with not hiring you.
Monday, April 19th, 2010
If you’ve been watching the news lately, you may have seen a story concerning the tragic death of 15 year-old high school student, Phoebe Prince, in Massachusetts. Phoebe was the victim of a vicious bullying campaign waged against her by at least 6 other students at South Hadley High School.
Everyone knows that growing up is hard, and that some amount of getting picked on from time to time is a part of every adolescent’s life experience. However, serious bullying can cause lasting psychological and, in some cases, physical harm to vulnerable children. In addition, the students doing the bullying can face serious negative consequences themselves when it gets out of hand. The bullying students in Phoebe’s case have been charged criminally for her death. Phoebe’s case is an extreme example of how bad it can get when schools do not step in to prevent bullying from getting out of hand, but lasting harm can and often is done even in less serious cases.
New Hampshire’s Supreme Court has held in the past that schools have a duty of reasonable supervision to oversee the welfare of the students in their care. That means that once a school becomes aware of unsafe conduct affecting the welfare of its students, it must step in and take reasonable measures to alleviate the dangerous situation. In the context of bullying, that means that once a student makes school officials aware that he or she is the target of bullying, the school must work to put a stop to it. Schools that fail to take prompt and effective measures to prevent bullying from continuing may face liability for damages caused to the bullied student for their failure to do so.
click here to read the People Magazine article
Monday, April 19th, 2010
The rise of computer technology has created new challenges for courts and lawyers concerning the scope of privacy protection afforded by the Fourth Amendment. When the Founding Fathers wrote that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” they had no idea that the future would enable people to carry their “papers and effects” with them everywhere they went. Yet “flash” or “thumbdrive” technology allows them to do just that. A recent Federal case out of Florida provides an example of the difficulties that new technologies present for court attempting to apply constitutional protections written well over 200 years ago.
In United States v. Durdley, the government wanted to use evidence obtained from a flash drive that Mr. Durdley had accidentally left in a computer at his place of work. The flash drive had some work-related documents, but it also had evidence that the government used to convict him of a crime. This evidence was found when a co-worker sat down at Durdley’s computer terminal and began searching through the non-work-related files. The co-worker alerted the authorities, who then used the evidence to convict Durdley of the crimes.
Durdley argued that he had an expectation of privacy in the contents of the thumb drive. He never loaded the incriminating evidence onto his work computer and never made it available for public viewing. The co-worker realized that Durdley had left the thumb drive behind and began searching through it, then alerted police. The court found that by leaving his thumb drive in the computer, Durdley forfeited his Fourth Amendment rights.
This is yet another example of a case in which the government, criminal defendants, and courts are struggling to figure out how to apply constitutional protections drafted in the 18th century to the digital age.
Thursday, April 1st, 2010
Spring is in the air. In a matter of days, water cooler conversation will again turn to the triumph or the tragedy of the previous night’s Red Sox game.
The warming weather will also lure more people outside, including children at play. Be mindful of this as you are driving around, particularly if you are driving home during the dangerous dusk hours. Remember that if a ball rolls into the street, a running child is probably not far behind it. Remember that your primary obligation when you are behind the wheel is not to answer the phone, reply to the text message, change the radio station, or reach for the CD that just fell on the floor. Your primary obligation under the law is to keep a proper lookout. Road conditions can change in an instant. One moment the road before you might be clear, and the next moment a skateboarding child might careen across the road in front of you. Paying attention to your surroundings is the best way to avoid accidents and keep everyone safe.
Thursday, April 1st, 2010
When does an insurance company have a duty to make a payment after you’ve filed a claim? The answer is, of course, “it depends.”
In personal injury claims, the insurance company is required by statute to attempt “in good faith to effectuate prompt, fair and equitable settlements or compromises of claims in which liability has become reasonably clear.” So in a rear-end car collision case, where the plaintiff in the car that was rear-ended clearly was not at fault, and driver who hit him or her was clearly liable, the insurance company would have a duty to act in good faith to come up with a “prompt, fair and equitable” settlement or compromise. Of course, all of those terms are subjective – the insurance company’s idea of “prompt, fair and equitable” is likely to be different than the injured plaintiff’s. As a practical matter, unless the insurance company’s negotiating position on the claimant’s damages is plainly unreasonable, the insurer can (and often does) hold out for a long time.
That is one reason it is important to have an experienced litigation team available to negotiate a personal injury claim – with that trial experience comes the skills and resources to demonstrate to an insurance company that it will not succeed in maintaining an unreasonably low settlement position.
Thursday, April 1st, 2010
On Wednesday, March 24, 2010, the United States Supreme Court stayed the execution of Henry W. Skinner, a Texas man convicted in the brutal 1993 killings. Skinner claimed he was too impaired by drugs and alcohol to have the strength to commit the crimes, but the jury rejected these claims and he was convicted and sentenced to death in 1995. Skinner raised various appeals through the Texas and federal courts, all of which failed. During this time, however, technical advances in the forensic use of DNA improved in ways that Skinner believes would have allowed him to prove that someone else committed the murders while he was passed out on drugs and alcohol.
The use of DNA evidence is a powerful thing. Although the law places the burden of proof on the government, DNA science can give a defendant a way to prove that he is actually innocent. The likelihood of error in DNA cases is exceedingly low. Since 1989, over 225 wrongfully convicted people have been cleared by DNA evidence.
The State of Texas and the federal government have put strict time limits on the ability of inmates to challenge their convictions. These limits were intended to prevent condemned prisoners from delaying their fate with endless, frivolous appeals. Access to DNA evidence already in the possession of the government, however, will not needlessly delay executions. If the evidence is tested, it will either support the government’s claim that Skinner was the killer, or provide evidence that someone else committed these heinous crimes. The process is simple, conclusive, and would either add to the certainty that the government is going to execute the right man, or prove Skinner’s innocence. There is little reason not to test the DNA evidence. If the evidence shows that Skinner committed the crimes, then society will send him to his fate knowing that we have the right man. Obviously, once the death penalty is imposed, it cannot be undone. There is no reason not to exhaust every avenue to ensure that only guilty people are executed.
Thursday, April 1st, 2010
Did you know that work injuries need not arise from a single traumatic event in order to be compensable under New Hampshire workers’ compensation law?
If you are working as a chef in a restaurant, and you slice your hand while dicing tomatoes, it is clear that you have suffered a work-related injury from a single trauma. But what if the injury occurs as a result of repeated traumas over time, rather than a single trauma? Suppose you dice tomatoes for the restaurant over the course of several years, each day subjecting your shoulder to repetitive movements in order to complete the task, and one day you suffer a sharp pain in your shoulder. You go to a doctor and learn that you have a rotator cuff tear. What caused it?
What caused an injury is a medical question that only a doctor can answer, but a doctor can only render an informed opinion on causation if you–the injured patient–describe for the doctor the activities in which you have engaged that may have affected the injured body part. In the case of the shoulder injury mentioned here, a doctor may very well conclude that the repetitive motions over time dicing the tomatoes ultimately caused the rotator cuff tear. If so, the injury is a compensable work-related injury, just as much as it would be if the shoulder injury occurred as the result of a distinct traumatic event rather than as a result of a series of traumas over time. Under New Hampshire workers’ compensation law, such an injury is called “cumulative trauma.”
While in theory an injury resulting from cumulative trauma is just as compensable in workers’ compensation as an injury resulting from a single traumatic event, in practice employees can face greater challenges obtaining workers’ compensation benefits for a cumulative trauma injury, simply because the cause of the injury is less obvious. If you suspect that you have suffered an injury as a result of repetitive activities that you have performed at work over a period of time, make certain that you describe the activities to your doctor when you seek treatment for the injury. If your doctor determines that the work activities caused or contributed to your injury, make certain that your doctor completes a New Hampshire Workers’ Compensation Medical Form so that you can pursue all the workers’ compensation benefits to which you may be entitled.