Law Blog

California’s Prop 8 and other state initiatives have sharpened the national debate on marriage equality. Less attention is paid to what may be considered a sub-issue of the marriage debate, however: adoption.  Five states-Michigan, Nebraska, Utah, Mississippi, and Arkansas-currently limit adoption to couples that are either married or heterosexual only. (The Supreme Court of Florida recently made a groundbreaking holding that overturned a 30 year old state law prohibiting gay couples from adopting.)

Within these five states, LegalMatch has had thousands of clients looking for adoption attorneys within the past 12 months.  Of these potential clients, 32% were single, potentially disqualifying them from consideration for adoption in Utah, Nebraska, and Arkansas.  1% identified as gay, thus precluding them from adoption in all of the above 5 states. (And possibly North Dakota, which allows adoption agencies to take into account the “moral and religious” qualities of applicants.)

Why do states limit who can adopt based on marriage or sexuality?  Florida’s gay adoption ban was based on the idea that parents who are gay may subject their children to ridicule and hostility from others, and may not be able to foster “proper” moral guidelines for their children. The Florida Supreme Court considered these motives unrelated to the ban, however, and rightfully so. But what about being married versus being single?

There is no scientific data showing that children are better off with married couples as opposed to unwed or single parents, or vice versa. Supporters of laws preferring married couples to unmarried couples tout anecdotal evidence or their own moral ideals that place greater weight on the idea of marriage and the alleged stability it brings, even though the national percentage of marriages that end in divorce is near 50%. In the end, laws prohibiting unmarried couples from adopting may be as unrelated to a child’s best interests as those laws prohibiting gay couples from doing the same. Indeed, many suspect that these marriage laws are more related to preventing gay couples from adopting more than anything else.

Obviously a single parent will have a lot more work cut out for them. But we have adoption agents and vigorous investigations into potential parents for a reason. Do we need laws arbitrarily deciding that married parents will always be better than un-married parents? No. Doing so only limits the number of people ready to take a child into their homes. Nationwide almost a third of the thousands of people seeking adoption attorneys last year at LegalMatch declared they were single. Would it be fair to exclude these people right off the bat, without any further investigation?

We should be able to trust our various state adoption agencies. After all, state legislatures are motivated by party politics and winning votes. Adoption agents are duty bound to make their decisions based on the best interests of the child. Who would you prefer to make the most important decision in your child’s life? 

According to a new report issued by the World Health Organization, drug use is more common in the United States than in any other country in the world, including those with comparatively lax drug enforcement laws such as the Netherlands.  Americans are the most frequent users of cocaine and marijuana; for instance, 16% of Americans reported using cocaine as opposed to the next closest contender, New Zealand (4%).  Americans are also the most likely to use marijuana (42%). 

Which drugs are Americans using?  Not surprisingly, the most common illegal drug today is marijuana, followed by cocaine, and methamphetamine.  According the U.S. Drug Enforcement Agency, 42% of total drug arrests involve marijuana.  This figure takes on new significance considering that marijuana is more potent than it’s been in over 30 years. 

These findings comport with LegalMatch.com figures I gathered from 2005 through the end of 2008.  39% of people looking for a drug-related criminal defense attorney were arrested for a crime involving marijuana; while 20% of arrests involved methamphetamine, 15% involved cocaine, 11% involved crack, 10% involved other drugs such as prescription medications, 3% involved heroin, 2% involved ecstasy, and 0.2% involved steroids.

While it’s discouraging to know that despite spending almost $12 billion per year on drug prevention efforts, so many Americans continue to use, the White House has some positive news.   According to a recent press release, illegal drug use in America is on the decline. A report based on data compiled from workplace drug tests, a study conducted by the University of Michigan, and the U.S. Drug Enforcement Agency shows that America’s tough drug policies are reducing illegal drug availability and demand.  Specifically, there was a 25% decline in overall illegal drug use by youths from 2001 to 2008.  Cocaine on American streets dropped in purity by 32% and increased in price by 89%, indicating a lack of supply.  Further, nationwide workplace drug tests showed a 38% drop in positive results from June 2006 to June 2008.

While illegal drug use may be on the decline as the economy tanks, some reports indicate that people are increasingly turning to prescription “escape” drugs, such as painkillers and mood enhancers to dull the pain of a foreclosure or job loss.  Drug industry sales figures show that many Americans are forgoing expensive doctor visits and high-priced medications, and instead choosing to mask their pain with prescription painkillers and psychiatric drugs.  Additionally, DEA officials recently reported that prescription drug abuse is rising sharply, at about an 80% increase from 2002. 

Is one problem merely being replaced by another?  Maybe not if the new administration recognizes that drug problems come in many different forms.

A recent case out of Wisconsin has given cheerleaders something more to cheer about. The Supreme Court of Wisconsin has ruled that cheerleaders, as participants in a contact sport, are immune from civil liability for accidental injuries caused during cheerleading related activities. The case reversed a lower court’s decision to hold a local cheerleader liable for failing to catch his 16 year old teammate during a routine. She fell backward off her teammate’s shoulders, seriously injuring her head and neck.

The state’s highest court applied a state law shielding participants in “contact sports” from most personal injury lawsuits. The law is well known and common throughout every state. Reckless or intentional injuries are still actionable, such as hitting an opponent in the face with your hockey stick. Injuries resulting from tackling the quarterback or knocking over a forward on a pick and roll, however, won’t end up in court, and for good reason. Almost every sport in the country would probably be buried in an avalanche of lawsuits.

What makes this case interesting is characterizing cheerleading as a “contact sport” under Wisconsin law. The relevant statutory language describes a contact sport as any recreational activity involving physical contact between persons in a sport involving teams. Well, there is at least one “team.” And they definitely come into contact with each other. But a contact sport? The lower court didn’t think so, citing that normal usage of the term meant opposing teams must come into contact with one another.  

In this blogger’s cynical opinion, what motivated this reversal was not an appeal to clear statutory interpretation, but the same pragmatic considerations for immunizing participants that come into play for other sports. In other words: policy. Almost 1/3rd of all catastrophic injuries to high school female athletes in the United States occur during cheerleading. Even though it may not be the biggest draw on ESPN, cheerleading is a popular activity. (Or sport, or whatever you want to call it). Ensuring that cheerleading has an affordable future free of multi-million dollar insurance contracts for participants is certainly an important consideration.

Although a case about cheerleading may not jump out as the most obvious foil for a debate on judicial decision making, this case has all the elements. A statutory interpretation that could go either way, along with policy considerations that are not clear in the statute but undoubtedly under consideration by the judges. Interestingly however, both a textualist and a pragmatist can find common ground with this decision. The law was written ambiguously enough that cheerleading could plausibly be considered a “contact sport” under the law of Wisconsin. And, important policy considerations for ensuring the continued survival of cheerleading are recognized and supported, even though they are not clearly spelled out in the law.

Perhaps we all therefore have something to cheer about?

People don’t like lawyers. They don’t like lawsuits. They don’t like courtrooms. There really is not much about the law or the court system that people really do enjoy. Lawyers that don’t return phone calls, over-bill their clients, or are just downright rude don’t really help the profession very much.

Lawyers who steal money from their clients, miss important deadlines, or just don’t care about the case, on the other hand, disparage the entire legal system. Attorney malpractice is the nasty big elephant in the room whenever there is a dispute between an attorney and her client, no matter how trivial the disagreement may be. In this litigious society of ours, no one is more cognizant of the risk of a lawsuit than lawyers themselves.

Last year, LegalMatch.com received thousands of potential clients seeking a malpractice claim against their former attorney. The majority of these claims were for your usual shenanigans:

• 12% said they failed to return the client’s money
• 20% of respondents claimed their attorneys failed to file their lawsuit on time.
• 29% said they failed to understand the law related to the case

Perhaps most interesting: 37% said their lawyers failed to get the result they had promised them.

Here is a big tip: If you walk into an attorney’s office and they say “If you hire me, I promise you that your case will turn out this way, guaranteed,” run away fast. You might have the easiest case in the world, but no one in this business should ever guarantee anything, ever. Even worse, proving a malpractice case for not getting the result promised would not be very easy.

All malpractice lawsuits are complicated and difficult to win. This translates into a very high bill for your lawyer’s services should you want to pursue a malpractice claim. The best thing you can do to avoid this nightmare is hire a good attorney from the get go. Not just an attorney with the credentials, but an attorney with a good reputation. However, legal matters are often highly personal. It is not easy to just call your friend and spill the beans in order to get a trusted referral. So what else can you do?

There are numerous easy steps you can take to ensure you are hiring a reputable lawyer. For instance, many states display an attorney’s disciplinary record online. In California, every attorney is listed on the State Bar website, and their disciplinary record is at the bottom of the page. You can also request the full discipline record for every attorney from the State Bar in writing. Although not every disciplinary charge is as serious as the next one, each one should be investigated and taken into consideration when you hire your attorney.

Your second resource is a little less obvious but extremely easy: the all powerful Google. Put the attorney’s name in quotes and search away, you may be surprised what you find. A caveat, however: take everything with a grain of salt. Not everyone understands why their case was lost, or why the judge gave them a harsh sentence. It is not always the lawyer’s fault, even though it may seem that way. Also remember that John Smith, Esq. may have the same name as John Smith, party animal. Use your better judgment to weed out the useless or irrelevant information.

Hiring your lawyer is the first big step in your case, and it may be the most important decision you will make on your own. Do it right and do it once.

By filing for bankruptcy, a consumer is stating in legal terms that he cannot pay his creditors.  While creditors have the option of filing a bankruptcy petition against a consumer debtor, most bankruptcies are filed by the debtor.  According to the National Bankruptcy Research Center, 1,064,927 consumers filed for personal bankruptcy in 2008, a 33% increase from 2007.  Filings are expected to rise again in 2009 because the primary reasons for this trend – the sagging economy, housing crisis, and credit crunch – are not likely to be resolved in the near future. 

However, there were still fewer filings in 2008 than in 2005 and earlier, prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA).   The BAPCPA overhauled important parts of the Bankruptcy Code, and made it more difficult for consumers to file for Chapter 7 bankruptcy.  For instance, the BAPCPA requires debtors filing for Chapter 7 to wait eight years between filings, and the BAPCPA raised the asset and income requirements needed to qualify for Chapter 7.  Consumers bringing home incomes that exceed their state’s median income level, and who can pay at least $6,000 over five years must instead file for Chapter 13.  The new law pushed Chapter 13 filings up from 24% in 2005 to 41% in 2008.

What’s the difference between Chapter 7 and Chapter 13?  By filing for Chapter 7, an individual agrees to have his assets liquidated in order to pay creditors; in return, the debtor is able to discharge some of his debts.  Under Chapter 13, the debtor keeps ownership and possession of his assets, but agrees to pay some of his future income to creditors under a debt repayment schedule.

I looked at LegalMatch.com data from 2005 to 2008 to investigate these trends for myself.  In 2005, 74% of consumer clients wished to discharge all of their debts, while only 7% wished to repay them over time.  In 2006, 66% sought to discharge their debts completely, while 12% sought to make payments.  In 2007, 65% sought to discharge all debt, while 13% sought to repay.  And in 2008, 66% sought to discharge, while 11% opted to repay.  

In sum, it appears that the BAPCPA has been successful in prompted consumers to increasingly seek repayment (Chapter 13) over total discharge (Chapter 7).  However, the law’s goal of reducing overall findings is being somewhat thwarted by the tumultuous economic climate.