Apr
19

Just a little change…

One of the ways I give back to the Probate and Family Courts is by volunteering as “Lawyer of the Day” in the courts where I frequently practice. There are many reasons why I do this. As always, it is because I appreciate how hard the staff works assisting attorneys and litigants in a resources limited environment. Initially, it was an opportunity to learn more about the procedures and forms I would not necessarily encounter in my practice at the time. Then, it was to have the opportunity to practice thinking fast “on my feet” and problem solve one case after another quickly. (There are often long lines for the lawyer of the day).

That was then, and this is now. I still volunteer as Lawyer of the Day, but I bring a different perspective. I view my role as assisting people to resolve their issue, not just by filling out the necessary paperwork and honing my skills, but also by posing questions such as: What harm is there in changing the rules of the game? Could a shift in your attitude possibly bring about a compromise of some sort? I then often role play with them. Surprisingly, the role playing frequently clarifies the point!

Admittedly, there are times when I get discouraged hearing negative after negative comments from clients as well as others caught in the system. Stating that the courts are not fair, the system does not work, and my former spouse seems to get away with his/her antics every time, only exacerbates the tension between the parties. Moreover, it appears that judges grow tired with these self-defeating attitudes.

The likely result: little is accomplished; constructive changes are few, and anger levels do not dissipate! One of my goals at Konowitz & Greenberg is to support a client in making a change, small as it may be.

Before blaming the system, muster the courage to stand outside of yourself; take a stab at seeing your conflicts and friction in a different light. Treat life as a kaleidoscope.

As the song from Beauty and the Beast states, “Just a little change, small as it may be… both a little scared, neither one prepared…”

Apr
10

What is Implicit Bias and Why is it Important?

The Massachusetts Supreme Judicial Court implemented a rule requiring newly admitted lawyers to complete the “Practicing with Professionalism” course, which I did a few weeks ago. This eight hour course touches on several topics, but one topic I found particularly useful was that of multicultural competency in lawyering.

We began this segment of the course by participating in an exercise where pictures of cars were displayed on the projector and in groups, we were to guess the demographics of that car’s driver. The whole auditorium envisioned the driver of the sleek BMW to be a middle-aged male. Likewise, the consensus was that the soccer mom drove the minivan. These associations are the product of implicit bias (i.e. stereotypes) and while this exercise with the cars was lighthearted, implicit bias can have dangerous implications when positive or negative associations are linked to people or groups of people.

Lawyers will work with clients and potential clients of all different ages, genders, races, sexual orientations, religions, nationalities, etc., making multicultural competence extremely important to a successful attorney-client relationship. To achieve multicultural competence, lawyers must confront their own implicit biases and be aware of what biases they hold. It is normal to develop biases because throughout the course of life, people have interacted and continue with countless social groups and people, causing these positive and negative associations to form based upon our experiences. Although it is normal to have biases, they can affect decision-making and ultimately, the caliber of representation a lawyer provides.

To overcome these biases, first, one must engage in honest self-reflection and actively locate both positive and negative biases held. When these biases are present in an issue, additional measures should be taken to mitigate the influence the bias may have. Using note-taking or other types of information processing can help to ensure that a decision is logical and merit-based, rather than influenced by bias. This type of processing allows for opportunities to catch when biases are creeping into the thought process. Allotting more time or discussing with teammates for cases where a bias is present also serves to safeguard decisions from bias. This ensures that the reasoning behind a decision is grounded in strategy and merit.

The law applies to all people and lawyers must confront their own biases to better represent the diverse clientele to whom the law applies to. By being self-aware and active about one’s own implicit bias is the first step to combatting the harm these biases cause.

Feb
28

“The times they are a-changing”

Ever since Donald Trump was elected President, I noticed an increase in activism. A day has not gone by in which I am not engaged in conversation about a Trump Policy. I realize that I was not concerned about the position I took or the position of the person I was talking with, but rather I was excited that a discussion was on going. This activism continues in my family when my wife attended a rally in Boston, and my daughter attended a different one. I have taken to writing letters to our elected official, about once a week.

The First Amendment of the Bill of Rights addresses five rights. The limits on government interference with religion, speech and the press were the result of the uniquely American experience. The right to peaceable assembly was a needed protection to exercise the first three. The First Amendment’s fifth right will come as a surprise to many. Only 1% of Americans even know that it exists. The Right to Petition was central to constitutional law and politics in the early United States. It is the First Amendment’s capstone: “Congress shall make no law … abridging … the right of the people …to petition the Government for a redress of grievances.” The Right to Petition is unknown to most Americans, or, if known, considered to be an extension of the first four rights, and not a right that stands on its own. This ignores Chief Justice John Marshall’s declaration: “[N]o provision of the Constitution was meant to be without effect…” Marbury v. Madison, (1803).

Today, in this electronic world, everyone is aware of how the President can get his message out by a Tweet. However, we, as citizens, have the electronic power as well to get any message we want out there. There is a website which give you instruction on “How to Petition the Government in Under 5 Minutes” (http://usgovinfo.about.com/od/rightsandfreedoms/a/How-To-Petition-Government-Online.htm). If you want to get even more narrow, you can petition directly to the White House (https://petitions.whitehouse.gov). This is a website developed by We the People which “expands the options for contacting the White House and does not displace current official methods of communication, such as mailing or emailing the White House.” On this website are several petitions already and you can just simply join one of them; or alternatively start your own. Even further, you can contact the White House directly through the White House Office of Correspondence, which maintains a contact form and information about communicating with the White House at (www.whitehouse.gov/contact)

How prophetic the words from the recipient of the 2016 Nobel Prize in Literature, Bob Dylan: “Come senators, congressmen; Please heed the call; Don’t stand in the doorway; Don’t block up the hall; For he that gets hurt; Will be he who has stalled; There’s the battle outside raging; It’ll soon shake your windows and rattle your walls; For the times they are a-changing.

Jan
31

Do You Know What’s In Your Will?

Before you signed your Last Will and Testament, did you read it carefully? Do you know and understand the contents of your will? Does your will reflect your wishes today for the disposition of your assets? The language in a will is not always easy to follow or comprehend, but there is a reasonable expectation that you are familiar with the terms of the will, either by discussing the terms with an attorney before it’s drafted and, by reviewing it before signing to ensure the will accurately reflects your wishes.

For over a hundred years in Massachusetts there has been a presumption that one who signs a will, a testator, knows its contents. While this presumption is rebuttable, in Massachusetts, unlike many states, there is no clear standard setting forth the burden someone challenging the allowance of a will must meet to overcome the presumption. In a recent case, Barounis v. Barounis, the Massachusetts Appeals Court faced this hurdle when confronted with multiple challenges to three conflicting estate plans that a Greek business owner with limited English language skills signed in the decade prior to his death. Assuming the need for “clear” evidence in support of a finding that a testator did not as a matter of fact know the contents of the most recent will he executed, the court found that the presumption was rebutted where the testator spoke only Greek, did not read or speak English, and did not ever express his wishes to his accountant who arranged for the will to be drafted by an attorney, who himself, did not speak Greek, and never spoke to the testator before meeting with him to sign the will.

While the facts in the Barounis case may seem extreme, they serve as a reminder to take special care when preparing an estate plan for a client. First, a client who does not have full command of English must have an independent translator during all attorney-client communications if the attorney does not speak the client’s native language. Second, regardless of the circumstance, adult children of the client should not participate in the initial meeting between attorney and client to protect the client from potential undue influence. Finally, it is critical that attorneys not only request written information about assets from a client, such as with a questionnaire, and document the wishes of the client during the drafting process, but also review the details of the estate plan before a client executes the documents. These steps will ensure that a testator knows and understands the terms of his will and estate plan, and can avoid dire consequences as we saw in the Barounis case.

So, on a final note, if you don’t remember what your will says or whether it still reflects your wishes, dig it out of the safe deposit box or contact your attorney. It may be time for an update.

Dec
23

What Will THEY Think of Next?

Three Person Embryo

MITOCHONDRIAL REPLACEMENT THERAPY (MRT)

I recently wrote an article entitled DNA What’s it to you? which can be found on the K&G website www.kongreen.com. My current blog focuses on another aspect of DNA: the manipulation of embryos to avoid inherited mitochondrial DNA. MRT is a controversial therapy which will allow women who have faulty DNA to avoid the risk of passing on genetic diseases to their children.

MRT was made legal in Britain in 2015. The treatment seeks to prevent mothers who have a high risk of transmitting certain diseases to their children, caused by mutations in mitochondria (tiny structures that provide energy inside cells). Children inherit all their mitochondria from their mothers. MRT uses healthy donor mitochondria to replace the faulty ones. The child will have 46 chromosomes from its parents, plus additional DNA from the donor’s mitochondria. The nucleus from the mother’s egg is plucked and then placed in a healthy donor egg to be fertilized, or a fertilized egg.

The jury is out. Thus far, it appears only one child, born April 2016, in Mexico, assisted with a U.S. medical team, is the product of this experimental procedure. Whether or not this process will in fact avoid serious health risks will be determined as the child continues to grow.

There has always been controversy over human embryo research. Concerns that jump out are the commercialism of such procedures, impacting on an (“innocent”) embryo. MRT preclinical research or clinical investigations involve the creation, manipulation and possible destruction of embryos. Others say MRT is not about saving children because the technique does not address a medical need likened to treating someone who is currently stricken. And, of course, there are other not so controversial options available. Families may be created through other means, notwithstanding the children will not be genetically related to the mother. Research and funding would be better spent by focusing on children afflicted with diseases caused by mutation in the genes of the nuclear DNA, rather than embryos.

Once again I say, DNA, what’s it to you?

Dec
05

LAW STUDENT TO LAWYER

Three years of law school is now a concluded chapter. Now I am a recent graduate and new associate, but the experience of being a new associate has revived the same anxious, excited, and uneasy feelings from the first year of law school. As the newest associate in the office, I am not only new to the office, but also to the practice of law. In the past two months, I have learned many things, not only about just how not to practice law, but also about the shift from law school to practice.

One. What I learned in law school does matter not only for the dreaded bar exam, but in practice as well. All throughout my schooling, I, as well as many other students, questioned the reasons for learning various subject matters because we thought we would never need nor remember it. To this day, I stand by this statement about calculus, but such is not true for my law school courses. I left law school with the knowledge amassed from reading appellate cases and studying legal theories, which seemed abstract at the time. Now, in practice, to confront a legal issue, this once abstract knowledge is tapped into and applied to a concrete real-life situation. Even information learned during bar prep has been utilized in practice, leading me to conclude that almost all legal knowledge is good knowledge and law school courses are not high school calculus.

Two. Asking questions is the best way to learn. When I was in school, unless I was asked to speak, I was a quiet student who remained silent, even if I had a thought to share. Such a passive approach had to change as working in a vacuum and not expressing ideas to colleagues is unconducive to a collegial work environment. The saying that “there are no stupid questions” is usually used to encourage participation, although it did not quite work for me in school. Now, I have realized that if I do not ask questions, I am not learning all that I should and could be. Asking questions while tackling a task ensures that I put forth the highest quality final product possible. Simply and frequently asking “why?” when being given an assignment not only helps ensure that my thought process is in sync with my supervisor’s, it also teaches me about strategy driving the need for this task.

Three. Have a life. Whether it be spending time with friends and loved ones, hiking, reading, tuning in on Harry Potter weekend, exercising, etc., taking time to enjoy all the things that make me who I am has been essential to staying balanced and maintaining focus during this exciting and dramatic change from law student to lawyer. I was once advised that I would not be a lawyer 100% of the time, but I am a person 100% of the time and it is equally important to nurture the person behind the lawyer as it is to nurture the lawyer—a piece of advice that has proven to be true.

Nov
28

DNA: What’s it to You?

I recently had the great opportunity to work with two terrific people, experts in their own right at the Mid-Year Conference in New Orleans, Helping to Healing, sponsored by the National Council for Adoption, the American Academy of Adoption Attorneys and American Academy of Assisted Reproduction Attorneys: Dan Berger an attorney who specializes in immigration and adoption related issues, Kayla Sheets, LCGC, a genetic counselor and researcher and founder of Vibrant Gene and I spoke on: DNA and the LAW.

  • DNA use is common in criminal and parentage cases
  • How a biological father may be ruled out as the legal parent
  • DNA alone may not be enough to resolve a custody dispute.
  • DNA testing, pre-birth, in gestational carrier and surrogacy arrangements.

Parentage Cases
When a person executes a Voluntary Acknowledgement of Parentage that person is deemed the legal parent, even if another comes forward, who is a DNA match and seeks to exercise parental rights. Recently, the Nebraska Court confirmed the man who tested positive as the biological father, had no parental rights to that child. Jesse B. v. Tylee H. (In re Adoption of Jaelyn B.), 293 Neb. 917 (2016). No pun intended: a Voluntary Acknowledgment of Paternity trumps the results of the DNA test.

Likewise, the U.S. Supreme Court acknowledged when a child is born to unmarried parents, even if the father’s DNA is a match, that man may not necessarily be deemed the legal father under the law. Or, simply put: DNA does not a parent make.

Custody Disputes
DNA may or may not be helpful in other areas of the law. A parental claim does not require a genetic relationship with the child. The Massachusetts S.J.C. recently recognized the former partner in a same-sex relationship as a legal parent. Partanen v. Gallagher, (MA October 4, 2016). The parties, a same-sex couple, broke up after a committed long term relationship. They never married, the children were conceived through assisted reproduction technology, and the petitioner never adopted the two children conceived and born during their relationship. The Court concluded the lack of a biological relationship did not bar one from being deemed the legal parent, relying upon M.G.L.Ch. 209C § 6(a) (4). (man presumed father of child born out of wedlock if jointly with mother received child into his home and openly held child as their child). The moral of the story: rely upon no one’s word, make it legal: marry or adopt.

It has been suggested that DNA testing would establish whether the placement of a child for adoption, triggers the Indian Child Welfare Act (“ICWA”). Nevertheless, a genetic determination is not enough to establish whether that particular child is an Indian Child subject to ICWA because each tribe has its own set of rules to determine who is an Indian Child. The takeaway: DNA results are not always the answer.

Gestational Carrier and Surrogacy Arrangements
To avert miscalculations and mix-ups, DNA testing prior to the birth of the child as soon as a DNA test may be done, should be mandatory in gestational carrier and surrogacy contracts. If the DNA test comes back negative, the carrier/surrogate misled the intended parents. Any others deceived would be the rest of the story!

Nov
28

Andy Warhol: “In the Future, Everyone will be World-Famous for 15 Minutes!”

Recently, I appeared before the Massachusetts Appeals Court. While most attorneys do not try cases, very few have the opportunity to appear before the Appeals Court. I have been honored to have appeared a handful of times. And each time, I remain in awe of how formal the process is and how exhilarating it feels to argue a case on appeal.

First, the Rules of Appellate Procedure (“Rules”) are very precise about the form of the written brief filed with the Court. The Rules dictate the size of the font, the margins, the color of ink and paper, the size of the paper, type of spacing, even where and how to bind the brief. Writing the brief is a painstaking process, months in the making to ensure that each argument is cogent and tight, and every legal citation in proper form.

Once the brief is filed, it’s time to prepare for the oral argument. Each party to the case is given its “15 minutes” of fame, so to speak. For those brief 15 minutes, I spent hours, upon hours, upon hours, preparing my argument and, equally important, preparing and anticipating the questions the judges would ask me, all the while recalling my motto: “be prepared, be prepared, be prepared, and then, prepare!”

The Appeals Court usually consists of a three judge panel. Each judge and his or her law clerks will have already read my brief, and likewise the judges are poised and prepared to interrupt me with questions. The last time I appeared, I had just finished introducing myself when I was interrupted. I never returned to my prepared argument but I was prepared for their relentless questioning.

The timing of my allotted fifteen minutes is extremely formal and precise. On the podium, ahead on me, are three lights: green, yellow, and red. When I start my argument, the green goes off, with one and a half minutes left, the yellow goes off, and, at the end of my fixed fifteen minutes, the red goes off; even in the midst of thought, I must stop and thank the judges.

Ready, set, show time. My case was called for 9:15 a.m. at the Boston Court House. I live in Newton, and knowing that the Boston morning commute is horrible, I decided, for this normal 35 minute ride, I would leave extra early (“being early, is being on time”) and left my house at 7:00 am. Surprisingly there was no traffic that morning; I parked the car and arrived at the courthouse at 7:45 a.m. After an interminable wait, the case was finally called at 11:45 am. My opponent, the Appellant, who actually filed the appeal, went first and was peppered with questions from the outset. When it was my turn, I started my introduction, and was ready to be interrupted with questions, yet, not one judge asked me a thing! After 7 minutes, the Chief Justice asked if I had anything further to say, whereupon, I said thank you, and sat down. All that preparation, and no peppering!!!

Three weeks after arguing, the Court ruled against my opponent making all the pain and angst worthwhile.

Nov
28

Volunteer Without Fear

With the arrival of the holiday season, many of us plan to volunteer to give back to the community. There is no shortage of those in need, and countless opportunities to lend a helping hand to those less fortunate. As valuable and admirable as your volunteer efforts may be, you could be subject to liability as a volunteer.  So before you head out to serve food at a shelter, sort donated clothes, visit with a senior citizen or veteran, or help deliver gifts to children, take a moment to learn how or if you may be held liable for your volunteer activities.

Volunteers working for an organization, especially those in health care, can be subject to liability. Fortunately, both state and federal laws offer certain liability protection to volunteer professionals. On the federal level, volunteers are protected under the Volunteer Protection Act, which since 1997 has provided all volunteers for not-for-profit organizations and government entities with protection from liability for harms caused by their acts or omissions while serving as volunteers. This federal law pre-empts any conflicting state law although many states have enacted broader protections. In order for the law to apply, the volunteer must act within the scope of his or her responsibilities, be properly licensed by the state (if applicable), the harm must not be caused by willful or criminal misconduct, gross negligence or reckless conduct, and further that the harm must not be caused while the volunteer was operating a motor vehicle. It is important to note that these liability limitations apply only to the volunteer, and not the organization.

Some states have laws in place to add additional protection to volunteers, such as a charitable immunity law or a Good Samaritan law. Generally, Good Samaritan laws protect health care professionals providing care in emergency situations, while charitable immunity laws protect health care professionals who provide non-emergency care for certain charitable organizations.

Massachusetts has a law that caps the amount awarded as damages against a charitable organization, which in effect protects the assets of these charities. A cap of $20,000 applies to not-for-profits for torts (an act or omission that results in injury) committed in the course of any activity carried on to accomplish directly the charitable purposes of the organization. The charitable cap statute has been upheld in a negligence action against a hospital involving a slip and fall that occurred because of snow and ice buildup on the hospital’s parking lot. Recently, in 2013, the cap was increased from $20,000 to $100,000 for not-for-profit health care providers involving medical malpractice claims, in an effort to facilitate settlement. Massachusetts also has several volunteer protection statutes which shield liability from civil damages of a director, officer or trustee of a not-for-profit charitable organization, a volunteer serving as an elder care coordinator or counselor, a physician, nurse or veterinarian acting as a Good Samaritan providing emergency care and athletic volunteers serving a not-for-profit organization.

Volunteering during the holiday season, or any time of the year can be a very gratifying experience whether you are a professional giving your time and talent to an organization or just a generous person trying to help a particular cause. It is reassuring to know that there are protections in place at the state and federal level to shield liability of volunteers and
not-for-profit organizations. While the laws in place cannot prevent volunteers or organizations from being sued, they certainly make it more difficult for a plaintiff to prevail in recovering damages.

Nov
28

Help Your Case Hold Water By Documenting

The theory of a case without supporting facts is just that — a theory — nothing more. I experienced this for the first time about a year ago as a student attorney in the Family Advocacy Clinic in law school. I was sitting across from my professors excited to tell them what I sincerely believed to be a convincing theory of my case. When they questioned, “what facts do you have to support it” my mind searched for an answer, but I had no reply. I envisioned my theory looking like a once full tub now rapidly draining. At that moment, I truly learned that supporting facts are the linchpin of a legal theory’s ability to hold water. To uncover these facts, I needed to conduct a fact investigation. This bath tub analogy resonated with me and as a newly minted associate transitioning into practice, it continues to be an indelible lesson.

Cases and clients are all unique, meaning fact investigations for each case vary depending on its nature and complexity. The best source to help facilitate and expedite fact investigation is the client. In my very green legal career, I have worked with clients who retained no records, clients who kept detailed records, and clients who fell somewhere in between and it is fair to say that where more detailed records are available, the more effectual the fact investigation.

No scientific formula exists for performing fact investigation, but for those who anticipate litigation in the future, there are ways to help the case “hold water.” One good habit is to keep all records, such as bills, bank and credit card statements, tax returns, receipts, and the like, storing them physically or electronically. While keeping documents can help streamline fact investigation, not retaining certain documents is not likely to be particularly damning. However, the same cannot be said for specific events that may help bolster a theory.

Often, a series of specific events that occurred can help strengthen a theory, but unlike documents, which are more concrete, more easily traced, and more easily reproduced, recollections of events are fleeting and can only be found in the memory of the person who experienced it. This is particularly true in family law, where the majority of theory development is rooted in the information the client reports. Details of events dissipate over time, lose value, and can eventually become unrecoverable. For these events to be germane to a legal theory, they must be documented soon after they are perceived to preserve the details and clients should be encouraged to do so, for example by maintaining a journal or log.

My professors used to constantly remind me to “document, document, document,” as a case unfolded. What is needed in a fact investigation can be unpredictable, but the more facts that can be documented the better because you do not usually know which facts will be relevant until the case fully evolves. This advice is not only applicable to lawyers, but is also useful for those who are in the midst of or anticipating litigation. Maintaining records and documenting might not be regular habits for most, but in litigation, these habits can help promote efficiency and economy in litigation by making fact investigation a collaborative effort between client and lawyer, and can most certainly impact the outcome of the case.

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