How Powerful is the US Supreme Court?

lrojas — Fri, 18 May 2012 17:24:44 +0000

The US Supreme Court is more powerful than science…just see what the Court did to the tomato

Scientists and my 3rd grade teacher (hello Ms. Epstein), taught me that a tomato is a fruit because it has seeds. Those of you that have argued that a tomato is a vegetable have the US Supreme Court in their corner.

In Nix v. Hedden, 149 U.S. 304 (1893), Justice Horace Gray, authored a unanimous Supreme Court opinion. finding that a tomato is a vegetable as a matter of law. They had good reason, the Tariff Act of 1883 declared a 10 percent tax on all vegetables entering the country, but allowed fruit to enter tax-free. The New York Customs Collector saw an opportunity to increase revenue and declared the tomato to be a vegetable.

Angry importers sued. The case reached the Supreme Court, which ruled: “[A]lthough botanists consider the tomato a fruit, tomatoes are eaten as a principal part of a meal, like squash or peas, (and all grow on vines), so it is the court’s decision that the tomato is a vegetable.”

What to Wear at Court

lrojas — Mon, 14 May 2012 19:18:20 +0000

When I was a law intern, I was assigned a family law case where I had to argue that my client was a competent parent. The week before her hearing I had a long meeting with my client where we discussed her case and at the very end I told my client to dress business casual on the day of the hearing. The day of the hearing I met my client at the court lobby to find her wearing an incredibly shear nylon black “shirt” which clearly showed her hot pink bra. This she paired with a skull and crossbones miniskirt. From that day forward I made it a point to give examples of what business casual means. Fortunately my client appeared early enough that I was able to send her running home to change her outfit before the court officers refused to let her enter the courthouse.

Even though I strongly believed that she was/is a competent parent, my job as an attorney is to convey this belief to others. Remember, your attorney has met with you on numerous occasions, researched your case, and spoke to all witnesses. We have taken the time to get to know you. The court and a jury do not have that luxury. They rely on first impressions.

Credibility is paramount in any trial and a client or witness’s appearance plays a considerable role. Here are five things attorney’s keep in mind when advising you on how to appear in court:

1. We want you to look professional. the judge and jury are suppose to focus on what you are saying, NOT what you are wearing. We know that our clients and witnesses have plenty of things on there mind before a hearing. They should have a clear understanding of what they are going to wear so that they are not panicking the eve of trial.

2. WE consider how we want to portray you and how the other attorney hopes to portray you. What constitutes “appropriate attire” is not the same for every client. We first consider what it is we’re trying to say about our witness. For example, some might remember that throughout the trial of the Menendez brothers in the early 1990s, both brothers spent almost the entirety of the trial dressed in button-down shirts and knit sweaters. They avoided suits and ties. This was done to try to limit the image of two rich, spoiled children who murdered their parents for money. Sweaters made them look modest and non-threatening. If showing up in court wearing an expensive suit will feed into the other side’s argument, then your attorney will tell you to to wear something else.

3. Wear comfortable clothing.Clothing affects the appearance of a witness in other ways as well. The last thing we want is an uncomfortable witness shifting, scratching and fidgeting on the stand. His or her body language might give the impression that the witness is not being truthful.

4. We know the courthouse rules. Lawyers are frequently at the courthouse. We have seen numerous people kicked out of the courthouse for wearing inappropriate clothing. Some examples of inappropriate clothing are obvious (gang symbols, shorts, tank tops, profanity on t-shirts, hats, lack of pants…etc.). Some examples of inappropriate clothing is surprising (sandals, flip flops, capris…etc.).If you break the rules, you may be refused entry in the court house and it may cost you your case.

5. Be weary of fashion advice from lawyers. We are not fashion experts. We don’t live in the same world as those who make up your jury pool. Most of the time, you do. What we believe is credible can be off-putting to others. So, if you are before a jury, take our advice with a grain of salt. That Boston Red Sox tie might actually play well with a Nashua, NH jury.

A Possible End to the LLC Shell Game

lrojas — Mon, 14 May 2012 14:33:53 +0000

It’s called a “shell game.” It involves three cups and a ball the size of a pea. The object of the game is to determine which cup is hiding the pea as the cups are shuffled about on a flat surface. It is a common game played on city streets by hustlers trying to make a quick buck and Limited Liability Corporations trying to escape responsibility. Until the New Hampshire Supreme Court decided Mbahaba v. Morgan. (The brief was written by Christopher Seufert & Lexie Rojas of Seufert, Davis & Hunt. It was argued before the Court by Francis G. Murphy of Shaheen & Gordon, P.A.)

Before this case was decided, when a Limited Liability Company was facing a lawsuit, it could simply protect its assets by forming a new Limited Liability Company and transferring the assets of old one to the new one. This left the poor victim chasing after an empty shell while the new Limited Liability continued to prosper. If the victim attempted to go after the new Limited Liability Company, the company would just reinvent itself again and transfer all of its monies and other assets to yet another new company. Because the law was not clear, the victim/plaintiff could be forced into a perpetual shell game where they would never be able to find the ball.

The decision in Mbahaba v. Morgan stated that a limited-liability identity cannot be used to promote an injustice upon the plaintiff. When this occurs, the plaintiff can pierce the corporate veil and ask the member of the various limited liability companies to lift all the cups to reveal the ball. This allows the plaintiff to attach assets with the goal of obtaining a judgment which could leave the plaintiff in a better position than when the injury occurred.

http://caselaw.findlaw.com/nh-supreme-court/1600860.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNHSup+(FindLaw+Case+Law+Updates+-+NH+Supreme+Court)

8 Reasons to Get a Will

bdavis — Wed, 09 May 2012 18:08:10 +0000

8 Reasons to Get a Will Today
by Brad Davis, Esq.
Seufert, Davis & Hunt, PLLC

1. Stress: After you die, your loved ones will be left with the responsibility of dividing your property. Without your guidance, loved ones will not know how you would have wanted to divide your property. Squabbles between loved ones with conflicting opinion will quickly turn heated and divisive, turning a grieving family into a feuding family. A will if drafted correctly leaves little doubt as to how you wanted your property divided.
2. You don’t want to be buried in the backyard but you also don’t want your loved ones to be left with an enormous bill. Your will appoints a person you trust to execute how you want to be laid to rest. This person is called the executor. The will instructs the executor on how you want your body laid to rest and instructs the executor to pay the costs out of your estate as oppose to leaving it up to family to carry the cost.
3. You have children AND a second (or even third) wife who is not the biological mom. Upon your death, if you leave children (including adult kids) your wife is entitled to choose between what you left her in the will OR 1/3 of your property. Should you have children that you want to leave specific items to, you need to designate this in a will as your wife may also want it. With specific instructions in place, your executor can make sure that your children get what you wanted them to have.
4. You have an old will which needs to be updated: If you were married decades ago and had a will naming your spouse as a beneficiary to your estate, then your ex may be able to collect upon your death. It can be argued that after your divorce you had sufficient time to change your will and because you did NOT change it, then you wanted your ex to benefit from your estate.
5. You have a specific piece of property that you want a specific person to have: Upon your death it may be insufficient for a person to say, “Susie said that when she died I could have her grandmother’s ring.” In order to make sure your loved one gets the property you promised, put that instruction in the will.
6. You want a portion of the Estate to go to Charity: without specific instructions your property will be forced to be divided intestate (without a will). The state follows strict instructions on how to divide your property amongst your family. Without a will, none of your money would go to charity unless one of your family members voluntarily gives up his/her share.
7. You are not close to your blood relatives and want to give your money to your friends: Without a will, upon notification of the court, the state divides your belongings amongst your blood relatives and spouse. Your wife has the power to collect something by law with or without a will but with or without a will your aunts, uncle cousins, kids, parents and grandparents, can all be left with nothing but your love and affection. This allows you to divide remaining assets amongst those who are important to you.
8. You have a parrot which will outlive you. A will also protects your furry/feathery/scaly family member that outlives you. Should you want to leave a pet with a loved one who you know will give your pet a good home you can leave your caretaker with the animal and a portion or your estate in the hopes that it will be used to take care of your pet.

Separation-of-powers | New Hampshire NEWS06

lrojas — Wed, 09 May 2012 13:49:35 +0000

Separation-of-powers | New Hampshire NEWS06.

The link above is an article detailing a new bill which is before our state legislature. Currently the Chief Justice of the New Hampshire Supreme Court decides all rules and procedures; the courts must follow in order to effectively and efficiently oversee cases.

The legislature wishes to take this authority away and give it to itself, under the guise of permitting the “people” the power to create their own court rules. This really means that legislative representatives would have the authority to make court rules. This may be problematic given the fact that not all representatives have legal experience and even if they do, very few know what is necessary to effectively guide a case through the judiciary process. I think this power is best left to the court, or that the legislature should at least adopt the court’s proposed compromise as it allows for the court and the legislature to have concurrent powers. What do you think?

Lawmakers: Edit ‘early offer’ bill

lrojas — Fri, 27 Apr 2012 19:52:17 +0000

We are not out of the woods yet! I ask all concerned citizens to contact their representative and tell them to vote “NO” on this bill.

Legislation called ‘huge hit’ for public

By Matthew Spolar / Monitor staff

April 27, 2012

After hearing a third day of testimony on a bill establishing an “early offer” medical malpractice claim system to cut down on protracted and expensive court battles, members of the House Judiciary Committee are starting to figure out what must be changed to win their approval.

Namely, several lawmakers have misgivings about a provision that would raise the legal threshold for winning a court case if a patient rejects the early money offer from the medical provider as compensation for a malpractice injury. The patient must then prove “by clear and convincing evidence that the medical care provider acted with gross negligence in causing the injury.”

“As is, there’s no way I can vote for it,” said Rep. Gary Hopper, a Weare Republican. “If the bill goes through as is, it’s a huge win for the insurance companies and huge hit for the citizens of New Hampshire. There’s no cottonpickin’ way I could vote for it.”

Hopper, who described himself as “just a middle-class guy,” said “most people, they look at some contract and they think everybody’s going to be out to help them out.”

Opponents of the bill, which include a trial attorney association, say uninformed patients would request an early settlement under the proposed system only to get a low-ball offer from the medical provider and end up facing an uphill battle in court

“Most people would just get hosed,” Hopper said.

Hospital officials and others in favor of the bill note the patient would have a choice of whether to request an early offer or go the traditional malpractice litigation route. Senate Majority Leader Jeb Bradley, a Wolfeboro Republican, said raising the legal threshold makes sure patients don’t try to “game the system” by only requesting an early offer to see if it meets a dollar figure they’ve set their sights on.

“There is a sense of trying to create a level playing field,” he said

But Rep. Brandon Giuda, a Chichester Republican, said he doesn’t think it’s fair to require patients who reject the offer to consequently prove gross negligence.

“I always err on the side of the uninformed citizens, if there is one,” Giuda said. “And I don’t want to create something folks will get trapped by.”

Rep. Paul LaCasse, a Claremont Republican, said “I have big reservations about voting for it” unless the bill doesn’t raise the legal threshold for those who reject an early offer.

“If you’re not well-informed you probably could take the carrot and be trapped in a situation where the bar would be raised,” he said.

Giuda, an attorney, said he now plans to spend half his weekend crafting his own amendment that will likely lower the legal threshold if the early offer is rejected, as well as addressing other concerns.

“I wish I had a lot more time,” he said.

That sentiment was echoed by Rep. Kathleen Souza, a Manchester Republican, who said she would prefer to see the bill go to a study committee to take more time to consider it. Following the first day of testimony on April 17, committee Chairman Robert Rowe of Amherst said the bill must be voted down to the House floor by May 10.

“There are amendments coming from every direction,” Souza said. “I’ve never seen a bill that’s got so many opinions.”

Hopper said “I still don’t have my arms around this.”

“I think there’s a lot of bull being slung in that room,” he said.

Giuda said his impression is the Senate, which passed the current bill on an 18-5 vote, would be fine with a House amendment addressing the legal threshold issue. Bradley said he’s unsure how hospitals and medical providers would react.

“I think it’s premature to say what would happen if they took that out,” Bradley said. “I hope it wouldn’t be a deal killer.”

Regardless of how the bill is altered, Bradley said it’s important the House do what they feel is appropriate – a point worth noting after relations between the House and Senate hit a rough patch this week when each chamber tabled bills important to the other.

“Each body gets their chance to shape the process,” he said.

(Matthew Spolar can be reached at 369-3309 or mspolar@cmonitor.com or on Twitter @mattspolar.)

Identity Theft

lrojas — Fri, 27 Apr 2012 14:13:39 +0000

Identity theft is on the rise. Do not give personal information over the phone, especially if you are NOT the one who initiated the call. In the story below, the woman was lucky that the police officers were able to act as quickly as they did. Tracking down the person’s responsible for the theft is very difficult and there is no guarantee that you will recover what was taken. If this happens to you, do not feel ashamed, quickly call your bank and credit cards, report what happened and freeze all accounts. Your bank will then proceed to tell you what needs to be done to save your funds. Then call the police and file a complaint with the New Hampshire Attorney General (Department of Justice).

Son, police & banker working late come to aid of Laconia woman who provided scam artist with account information

By Michael Kitch

Apr 27, 2012 12:00 am

LACONIA — Monday evening, while Police Chief Chris Adams was telling the City Council of a rise in attempts to defraud senior citizens, the prompt action of a police officer and local banker spared an elderly woman from financial loss.

“It was around 8:30 p.m.,” the woman began. “I was sitting at the dining room table doing paperwork when the telephone rang.” She said that she answered to hear a woman speaking with an accent she could not place tell her that the government was issuing cards for senior citizens, which would contain their vital information in the event of an emergency.”She sounded very far away,” the woman said.

“I gave her my name, address and phone number,” the lady continued. “Then she asked me the name of my bank. I said Laconia Savings Bank and she said ‘isn’t that, Bank of New Hampshire now’ and I said yes it is.” Then the woman asked for her account number and the routing number of the bank. She read both numbers over the telephone and was then told to provide the same information to another woman.

When the call ended, the woman suspected she had made a mistake and called her son, a physician living and working on the West Coast. “He told me ‘it’s definitely’ a scam,” she recalled. Her son asked her to retrieve the number of the caller and told her when he dialed the number he got only a message that there was no such number in service.

The woman called the police When Officer Dan Carsen arrived she told him “I’ll never trust me again.” Although it was 9:30 p.m. Carsen reached Karen Cornell, a compliance officer who handles risk and fraud at the headquarters of Bank of New Hampshire. “I was glad I was here,” said Cornell, who confessed to frequently working into the night.

Cornell said that she told the woman that steps would be taken to safeguard her accounts. “I wanted to assure her that her money would not disappear into cyberspace while she was asleep,” Cornell said. “We can close the barn door before the animals get out.” By 7 a.m. the next morning the woman’s accounts were locked and when the bank opened at 8:30 a.m. she was meeting with Cornell and others to resolve the remaining issues.

“I didn’t lose a penny,” the woman said, praising the efforts of Carsen and Cornell. Cornell. “Dan told me to stop beating myself up,” she remarked, “but I’m still shaking and it’s Thursday.” She said that she wanted to tell her story as a warning to others.

Cornell stressed that with modern computer technology the least bit of personal information can lead to breaches of security. She referred anyone concerned about identity theft to the bank’s website, where they will find information and recommendations for securing their personal information.

Cornell said that “there is lots of information available. The woman got a sense from all that information that something was wrong. She was a little too late, but she won’t be late if it happens again.”

Malpractice bill not right solution – NashuaTelegraph.com

lrojas — Mon, 23 Apr 2012 13:03:31 +0000

Malpractice bill not right solution – NashuaTelegraph.com.

Click the Link above for a simplified argument on why this bill is so detrimental to victims of malpractice.

Please call your legislature and tell them you are concerned that the bill is forcing people who have legitimate complaints out of the legal system and forcing them to settle for less money then they need for future care and to support there families.

Lawyer Joke: Golf

lrojas — Tue, 17 Apr 2012 19:59:59 +0000

A golfer hooked his tee shot over a hill and onto the next fairway. Walking toward his ball, he saw a man lying on the ground, groaning with pain.

“I’m an attorney,” the wincing man said, “and this is going to cost you $5000.”

“I’m sorry, I’m really sorry,” the concerned golfer replied. “But I did yell ‘fore’.”

“I’ll take it,” the attorney said.

(THIS POST IS STRICTLY A JOKE AND NOT MEANT TO BE RELIED UPON AS LEGAL ADVICE)

Malpractice | SeacoastOnline.com

lrojas — Mon, 09 Apr 2012 14:50:19 +0000

Malpractice | SeacoastOnline.com.

This article shows both sides of the argument.