This section is devoted to sharing Chuck’s perspective on legal issues affecting New Hampshire. Chuck’s unique experiences – one of the youngest New Hampshire Supreme Court Judges and a Congressman in the United States House of Representatives, makes him qualified to offer his thoughts on current legal topics that impact New Hampshire.
GUESS WHO IS LOOKING AT SOCIAL NETWORKING SITES — EMPLOYERS!
Facebook, Twitter, etc. are fast becoming a popular tool for employers looking for information about future employees. The social networking sites, according to one source, are used by 45% of employers to screen potential job candidates. At least a third of those employers have rejected an applicant because of information they discovered from social networking sites where the future employee talked about drug and alcohol use, nudity, bad mouthed a former employer, bragged about misconduct or made discriminatory remarks. This is another reminder that postings on the internet are available for many people to see – even those you don’t intend to read it or use the information. All of those folks who are having fun on the internet should realize that it may cost them a future job because for employers it’s fast, free and easy and there is a treasure trove of ridiculous information posted by people. Young people especially enjoy putting their wild and crazy times on the internet for the rest of eternity. Social networking sites, including profiles, will tell an employer most information they might want to do know but are afraid to ask such as, gender, marital status, religion, age, and even a photograph to help show ethnicity, race, etc.
For future employees, beware of what you decide to post on the internet because it may come back in many ways.
HAVE TREES? IF SO, ARE YOUR LIMBS POSSIBLY SUBJECTING YOU TO SUIT BY AN ABUTTER?
On February 25, 2011, the New Hampshire Supreme Court decided a case involving overhanging trees that were rotted and dangerous, thereby affecting the abutter’s use of her driveway.
The Court reiterated that landowners have long been held to a rule governed by the test of reasonable care under all the circumstances in the maintenance and operation of their property. However, naturally growing trees which have been on the landowners property for years presented a novel question. The Court said that a landowner who knows, or should know, that a tree on his property is decayed or defective has a duty to eliminate that danger. A person does not have to actually wait for the limb to fall before suit can be filed. There is an inherent injustice to allow a landowner to escape all liability of harm and damage to a neighbor merely by allowing nature to take its course. Thus, where there is a foreseeable risk of injury when a tree is decayed or defective, a landowner who knows, or should know, that his tree is decayed or defective has a duty to eliminate that condition.
This is a an interesting opinion that creates what some may call a new duty on the part of landowners to their abutters. It is also one that would involve homeowner’s insurance which is another reason that if you have trees you would want to have such insurance because the odds are greater that you would be covered for defense costs than if you did not have such insurance.
This office does a lot of work in the area of what is called tort law or civil damages for negligence to another. Be sure the attorney you contact is skilled in that area of the law.
CAN YOU SUE FOR A VIOLENT MARRIAGE AFTER YOU ARE DIVORCED?
The interplay between ending a marriage that may have involved domestic violence for several years and the right of a wife to sue her husband after divorce recently came together in a case in California. In Boblitt v. Boblitt, the California Appellate Court considered a civil lawsuit for money damages on a tort claim brought by a wife against her husband for a broken jaw and a history of physical abuse during their 24 year relationship and marriage.
The husband moved to dismiss the case saying that part of the divorce code in California included taking into account a history of domestic violence in determining support and alimony. He said that the wife’s issues all could have been litigated in the marital case, thereby foreclosing her from filing a lawsuit after the divorce was final.
The doctrine of res judicata means that once a case is decided it is over and done with. However, a tort action, like the one she brought, is based on the right to be free from personal injury. The court said there was no sound basis for concluding that the marital code would have fully compensated her for the pattern of violations of those rights. In other words, considering domestic violence and setting a level of support does not vindicate the primary right of a woman to be free from personal injury. Therefore, the wife had a right to proceed with a civil action for money damages.
BE CAREFUL E-MAILING YOUR ATTORNEY
In a recent case in Massachusetts a lawyer sent an e-mail to opposing counsel with a blind copy or “bcc” to his client, Mr. Kohn. Kohn then responded, using the Reply All function, thereby transmitting his response simultaneously to opposing counsel as well as his own lawyer who had sent him the e-mail. The content of Mr. Kohn’s response clearly was aimed only for his personal lawyer and was not meant to go to opposing counsel as well.
Twenty-eight minutes later, Kohn’s lawyer figured out what had happened and sent an e-mail to opposing counsel demanding deletion. When opposing counsel would not agree to deleting the e-mail the matter came before a judge in Massachusetts.
The Court concluded that a client does not lose the benefit of attorney-client privilege if there is an inadvertent disclosure and if the client proves that he and his lawyer took reasonable steps to preserve the confidentiality of the communication. On the other hand, in the Kohn case the client had made the error rather than his lawyer. While it was unintended it is certainly of a type that is common and easy to make and therefore, the Court agreed that Mr. Kohn had taken reasonable steps to preserve the confidentiality of the particular communication. The court, therefore, precluded any use of the e-mail at trial.
So, please take note – Reply All is risky, so is bcc.
CHUCK DOUGLAS HELPS POLICE IN DEATH PENALTY CASE
On October 6, the New Hampshire Supreme Court decided one of several cases arising out of the murder of a police officer in Manchester. Defendant, Michael Addison, who has been sentenced to death for that murder was hoping to attack the New Hampshire death penalty because of the fact that we have only had one death penalty verdict for shooting a police officer, and therefore, no way to compare whether or not it was fair and proportional under state law.
The New Hampshire Associations of Chiefs of Police, the New Hampshire Sheriff’s Association, the New Hampshire Police Association and the New Hampshire Troopers Association hired Chuck Douglas to file a brief favoring a restrictive review of the death penalty statutes rather than a broad construction. In their opinion, the Supreme Court rejected an attempt by the defendant to have a Special Master appointed to compare the evidence in the Addison case with all other murder cases in the United States as well as to compare all cases where the death penalty could have been imposed. Our firm was pleased to have helped out the New Hampshire law enforcement community in advocating for an opinion that was not the broad review as the death penalty opponents would like.
JUSTICE DELAYED — NEW HAMPSHIRE COURT SYSTEM
Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system. It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.
Each year 230,000 court cases are filed in New Hampshire.
Certain types of court cases have specific time frames in which to act and those are set by the legislature. For example, domestic violence cases and criminal cases require certain scheduling dates by law. Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies. For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.
Stalking cases were 1,470 in number, with the same time requirements. 9,600 landlord/tenant cases must be heard ten days from service of process. Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.
Families are also heavily affected by the lack of a judge to help decide their disputes. 7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.
Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork. Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.
In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”
The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts. It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.
Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May. Concord District Court, which is a three-judge court, is now operating with one full-time judge. Due to the reduction in personnel a form letter went out this summer canceling all civil trials.
Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.
On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m. As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March. Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.
And Hillsborough County just announced:
HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES
TUESDAY AND THURSDAY AFTERNOONS
Staff shortages prompt move to focus on reduction of case backlog
CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.
Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.
After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.
As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.
Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.
Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.
These cutbacks affect all citizens who seek justice. I will do all I can to fight for fair funding. If you have a delay horror story, email me at info@nojustice.org
http://www.nashuatelegraph.com/opinion/perspectives/871446-263/douglas-why-we-are-suing-the-state.html
http://www.concordmonitor.com/article/218860/who-should-set-judicial-budget-not-judges
http://www.concordmonitor.com/article/218150/judicial-budget-in-court
http://www.seacoastonline.com/articles/20101003-OPINION-10030313
http://nhbar.org/publications/budgetcrisis.asp (see copy of petition filed)
JUSTICE DELAYED IS JUSTICE DENIED
Budget cuts have left the entire court system in New Hampshire at a dangerous point that is hurting victims. Because state budget cuts have eliminated judges and court staff, jury trials have been cancelled and cases take longer to move through the system. For example, this means civil (non-criminal) cases by a patient harmed by medical malpractice or an accident victim seeking compensation won’t have a jury trial for more than a year.
The elimination of civil jury trials benefits insurance companies. And it doubly impacts those people injured because they have to wait for their day in court – a year or two sometimes – and defendants, like insurance companies, are less inclined to offer reasonable settlements with no trial scheduled. It is common for insurance companies to try and settle claims with the pressure of facing a jury trial. Without facing a jury trial, insurance companies are in a position to make unreasonably “low” offers.
Justice is not being done when victims of an auto accident, a wrongful death, medical malpractice or employment discrimination are compelled to accept “low” settlement offers. Insurance companies will take advantage of the cancellation of civil jury trials.
SEXUAL COMMENTS CAN CREATE A HOSTILE WORK ENVIRONMENT
A physician running a clinic with approximately 25 employees apparently enjoyed telling dirty jokes and commenting on female body parts during the work day. One of the staff physicians, who was pregnant, did not appreciate the doctor’s continual obsession with breasts, breast feeding, etc. The doctor called himself a shock jock and, therefore, assumed because everyone involved was in the medical profession that somehow the normal requirements for dealing with human anatomy allowed him wider verbal leeway. Not so said a Federal Appeals Court.
On the other hand, a woman who was transferred from an environment within a company where the men were constantly streaming sexual comments and threats at her ended up in a department where the rhetoric was dramatically different and not offensive. Unfortunately, she waited too long to complain about the prior department she worked in and she missed the time limits under the law. The comments she did timely complain about were one employee talking on the phone about “chickies” and a sleepover with a woman. The court held that those comments were too trivial to support a hostile work environment sexual harassment case.
That is why you need to contact employment lawyers who represent employees if you are in an offensive environment. If you are unsure of your rights, feel free to contact us.
MEDICAL MALPRACTICE SHOW JUSTICE TO INJURED PATIENTS
Recently, I testified in the New Hampshire State Senate in favor of a bill that would simplify the screening panel system required before you can have a medical malpractice trial. Right now a new law requires you to go through a panel of one doctor, one lawyer, and one judge before you can get into a courtroom. The problem is that it usually means a two day mini trial with $10,000 to $20,000 of expense for the experts just to get yourself in the courthouse door. Then you have to do it all over again at trial. The goal of the legislation I support is to have no live testimony, but use medical records and expert reports orally presented by the lawyers involved so that the panel can truly screen out the frivolous cases. This change is needed in the interest of justice for victims of medical malpractice who can’t take on the wealthy insurance companies that love to drive up your cost of going to court.
EMPLOYMENT DISCRIMINATION – - NEW HAVEN FIREFIGHTER CASE
We have important laws that are designed to protect employees from discrimination in the workplace. On June 29, 2009, the United States Supreme Court issued a 5-4 decision finding that the City of New Haven, Connecticut violated the civil rights act when it threw out the results of civil service examinations. Those examinations had cost the city $100,000 and attempted to be a neutral and fair testing system for candidates for Lieutenant and Captain. Because only the white and Hispanic candidates scored high on the test New Haven chose to throw the test out rather than to base promotions on it because minorities did not score high on the test. The Supreme Court decision makes employment decision more race neutral by overturning what New Haven did. While employment discrimination remains a serious problem in our society we should avoid penalizing persons who do well on tests just because they are white.
PROTECT YOUR FAMILY IN AN AUTO ACCIDENT WITH UNINSURED MOTORIST INSURANCE
In these difficult times economic times a number of motorists are dropping or reducing the policy limits on their automobile insurance to save money. Unlike many states, New Hampshire does not require insurance for most drivers so you need to protect yourself by having uninsured motorist coverage. This coverage compensates you if you are hit by an uninsured driver. To adequately protect you and your family, we suggest that you have at least $250,000 in uninsured motorist coverage. The cost for these two policy coverage’s is not expensive and we want you to be in a position of protecting yourself in the event of an accident with a hit and run or someone who has no insurance. If you have any questions about this, feel free to call us.
GENDER SPECIFIC SWEARING AT WORK
What if you worked in a very vulgar work setting? In a case decided by the 11th Circuit Federal Court of Appeals a woman sued because she worked on a sales floor of a transportation and shipping company in Alabama with 6 crude male co-workers. There were no large barriers between the work cubicles so Ms. Reeves could daily hear the language of her male co-workers as they shouted gender-specific vulgarities aimed at women. The company’s defense was that old standby that “that’s just the way things are” but the woman was able to show disparate treatment under the law. The employer’s problem was that she had to endure pervasive daily references that were gender specific. It was not a stray or occasional swear word but a steady daily drum beat directed at females by the male sales force. The company ignored her complaints and lost the case because of the hostile work environment it allow to exist in the workplace.
WHAT IF YOU LOOK LIKE ELLEN DEGENERES?
A female employee at a Midwest hotel was hired to fill the front desk position, but her short hair and loose fitting men’s clothing made many customers mistake her for a male. An Iowa hotel felt she was not a “good fit” for the front desk because she did not look “female” enough. The Supreme Court has held that sex stereotyping can violate Title VII when it influences employment decisions. The 8th Circuit Court of Appeals held that the standard of looking “pretty” and like a “Midwestern girl” was gender based because they were terms that by their nature only applied to women. Therefore the hotel was liable for money damages.
