Author Archive for Violet Petran

Who’s Your Daddy? When Paternity is an Issue

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I grew up in a very nuclear family, so the idea of not knowing my father was never an issue.  The recent press over Leicester Bryce Stovell, the man claiming to be basketball star LeBron James father got me thinking about the paternity process.

But first, here is the latest in LeBron’s case: Stovell claims that the results of the paternity test he recently took were falsified by James and his mother, Gloria, and that James’s committed fraud and misrepresentation in an effort to conceal the identity of James’ father.  Stovell further alleges that his character was defamed by James’ comment, “I want to be a better father than mine was.”
This is not your typical paternity dispute (neither is this one involving deceased Chess champion Bobby Fischer being exhumed from his grave to determine whether he is the father to a nine year old Pilipino girl) in that paternity tests usually involve the mother or child seeking the test in order to establish a relationship, child support, custody and visitation rights, adoption, inheritance, and other parenting issues.  In this case, it is the father wishing to establish the biological relationship and also seeking millions of dollars in damages for being denied access to his “son.”

A paternity test is essentially a DNA test to prove beyond a legal doubt that by taking samples from the child and the father that there is a biological relationship.  States vary as to the standard they require but the test is the same. Paternity tests claim 99% accuracy and can be completed in a couple of days, plus both before birth and after death.

In a recent study conducted by LegalMatch, there was as much interest in determining paternity as there was contesting paternity.  This is not too surprising as this can be a very costly issue for both parties and there is a lot at stake.  Highly emotional, the paternity test can serve as the final adjudicator in the issue of fatherhood.

Reading these various articles and cases surrounding paternity, I am still amazed how far technology has come.  The fact that we can test a baby in the womb or exhume a dead body to establish paternity is quite a feat and can hopefully serve to answer the important question of fatherhood.

In the case of LeBron James, I think it is a shame that Stovell has only come forward after James has made millions of dollars and been raised by his single mother.  One aspect of paternity that I do like hearing about is the increase in companies granting father’s paternity leave in the same way mothers take maternity leave.  I think this is a great trend and one that seems to be gaining momentum.

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Lawyers Don’t Make Very Good Fortune Tellers

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Lawyers wear a lot of hats and varying duties and responsibilities with each one.  They serve as advocates, mediators, counselors, friends, and fortune tellers.  Ok well maybe not fortune tellers, but after explaining the circumstances of a case, the client’s first question usually concerns their chances of winning, forcing the attorney to predict the outcome of a case.  And let’s be honest – people want to hear the good and that there is merit to their case.  Not surprisingly, lawyers need to keep making predictions throughout the course of a case.

Interestingly enough, a recent paper published in Psychology, Public Policy, and Law reported that a 500-lawyer study comparing case predictions and realities found that lawyers have a proclivity for over-optimism and overconfident predictions.  Another finding of the study was that female lawyers were much more realistic in their ideas concerning the outcome of a case (shocker!).  And the old adage, with age comes wisdom, does not apply to these findings as there was no difference between younger lawyers and more seasoned attorneys when it came to case predictions.

I would think that older attorneys have seen how similar cases play out and have a better handle on the chances of a case, but then again, there is always an ego involved and giving off the impression that you are going to be victorious is reassuring to a client.

Optimism is good, but I do think that a lawyer owes their clients a level of candor and honesty about the merits of their case, and the findings of this research got me thinking about the line between positive thinking and potential attorney malpractice.  Lawyers are in charge of the case and make the strategic decisions that can make or break a case.  Of course, a client has to be informed, but often the legal complexities of a case can be too much for the layperson and the ultimate decision is left in the hands of the attorney.

Your attorney is tasked with rendering competent representation for you, and when he or she falls short of that required competency, then your attorney becomes liable for those damages you suffer as a result.  The best argument in these overconfidence cases would be for negligence on the part of the attorney based on the fact that they may have known that they were keeping you in a losing case when you should have settled long ago.  Since an attorney can (and has) been held responsible for their negligence in initiating and pursing litigation and/or taking the wrong steps during the course of litigation, there is always the chance that this overconfidence can come to haunt them later.

In the end, I think there needs to be a healthy mix of optimism and realism on the part of the attorney.  As I mentioned, the lay person can easily be overwhelmed by the law, and although they think they should win, the lawyer needs to set realistic expectations because in the end, people are much more let down if they are expecting a win but lose.  On this same thread, clients need to know that lawyers cannot win every case and that it is a gamble to bring a suit and be willing to accept not just the good, but the bad and the ugly too.

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Should There Be A Statute of Limitations For Certain Sexual Abuse Cases?

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I recently wrote about a sexual abuse cover-up decades old within the Boy Scouts of America.  Ultimately the victim in that case was awarded sizeable punitive damages award based on the negligence of the organization and the emotional damage it has caused him even years later.

That leads to the point of this blog and a recent article in the New York Times….should the statute of limitations for certain sexual abuse cases be suspended?  More specifically, the article looks at whether victims of sexual abuse from a public school teacher, a doctor or hospital attendant or doctor, police officer, or other civil servant should be able to file suit decades after the abuse occurred.

The current bill in New York would allow for cases to be brought similar to those much publicized Catholic Church cases, many of which date back to the 1970’s.

Statute of limitations, in effect, set the maximum deadline that a case can be filed.  The time limit depends on the state, the circumstances and complexity of the claim, and the court in which the claim is brought.  Even the IRS is held to a 10-year statute of limitations for tax collections!  Although it can seem unfair that a plaintiff with a valid claim and damages would be barred from bringing a suit after a certain period of time, below are the reasons behind imposing such a limit:

(1)Fairness- there is the notion that people need to get on with their life and after a certain amount of time, they should not worry about a lawsuit.

(2)The diminishing value of evidence- the best cases are brought as close as possible to when the injury occurred.  There is a major concern that important evidence will be lost or fade over time.

(3)Encouraging diligence on the part of the plaintiff in bringing the case- the rationale behind this is to help encourage an efficient closure to the case.

In general, the law recognizes two types of special circumstances which would make the application of the statute of limitations unfair. The first is where the plaintiff may be under a disability, making it difficult for the plaintiff to bring an action within the required time period. The plaintiff can be too young, disabled, or imprisoned. The second, and more common one, is where the plaintiff is unaware of the cause of action and the operation of the statute without some exception would impose an unfair hardship.  Expanding the category of special circumstances to allow for classes of sexual abuse cases could pose a major drain on the court and tax payers.

The main purpose behind statute of limitations is to be fair to a defendant and encourage efficiency on the part of the plaintiff.  Sexual abuse is a tragedy; it can physically and emotionally scar a victim for the rest of his life. That being said, they should have a chance to bring their case and recover when possible, but the potential problem with these types of cases will be with the evidence.  How can you persuasively prove a sexual abuse case when so much time has passed and witnesses have died?  I think that if these cases have similarities between those of the Catholic Church, then there has been a cover up, rather than a statute of limitations, that is the true cause of the delayed case.

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Porn: The Ultimate Stress Reliever, At Least If You Work At The SEC

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Jobs can be stressful.  Balancing your work life with family, friends, hobbies, and other pursuits can be even more stressful.  Although lawyers are constantly rated as having one of the most stressful jobs, they are not the only ones.  Take government workers for example: working for the Securities Exchange Commission (especially in the wake of the tremendous publicity the organization has received post-Maddoff) can cause its employees to search for stress-relief outlets while on the clock.

I for one, find a lunchtime run a great way to relieve stress and a chance to get out of the office setting. One employee at the SEC found his relief right at the very computer he does his work on.  Perusing porn sites such, the civil servant was able to get through the work week by doing more internet browsing that he does billable hours.  He must have had a lot of stress because his supervisor later found that he had roughly 1,800 log-in attempts during his work hours.  His “tension relief” took up so much memory on his work computer that he eventually began saving the images (and storing them at his office desk, obviously) on CD’s and DVD’S.

The SEC employee (who is actually an attorney) is not alone.  In a recent internal investigation into the use of work time and equipment to download explicit images, dozens of employees were found to be accessing the sites.  The investigation also noted that many of the incidents occurred after the global financial meltdown and several of the employees held senior positions, earning between $99,300 and $222,418 per year.  I am going to go ahead and say that the SEC is having a bad year.

I, for one, think that stress relief must come in the form of something different.  If you work on a computer, then your stress relief should not have anything to do with the computer!  Although I am not going to go so far as to say that such an approach would have solved the little porn problem the SEC has on its hand, it is a start.  It is unfair to shift the blame off of the employees because the bottom line is that they should not be wasting their employer’s time and money looking at inappropriate websites.  At the same time, employers need to be aware of the conditions that they are creating, whether internally or externally for their employees to deal with.  It is no surprise that many of the incidents occurred during a very stressful financial time. What is surprising to me is the high volume of workplace porn in general.  Companies frequently monitor emails and block websites so it seems like people would have a little more concern at the prospect of being caught!

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My Day In Court: A Lesson In Traffic Tickets

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Police lights flashing in my rear view mirror was not really a welcome sign in the 4th hour of a 6 hour drive.  No, this was not a fun road trip where I could laugh about it with friends later.  I was by myself and just pushing the speed limit in the middle of nowhere (or so I thought) on my way to visit my parents for the weekend.  Of course I was being pulled over for speeding (in cruise control no less) and the tears were flowing.  Even though I know all about my legal rights when it comes to confrontations with police, I couldn’t help but feel embarrassed, scared, and really overwhelmed by the situation.  So much so that I did not have the chance to explain my case or ask any questions.  I just took the $400 ticket and kept driving, slowly.

Fast forward to a week later when I gained my composure and did a little (ok a lot) of “how to get out of a ticket or at least make it better” research.  By “make it better” I mean somehow reduce the fine and avoid the increase in insurance rates that were sure to result from my lead foot.  It turned out that I didn’t have to wait to contest my ticket until a court date and initially I decided to contact the ticketing officer directly to plead my case.  I wrote a letter in the same fashion I would write a professional cover letter—I was basically trying to sell myself, my squeaky clean driving record (because parking tickets don’t count), and why my fine was way too high for a few mph over the speed limit.  Although this method does not usually work, it gave me piece of mind and a chance to learn more about the system.

The options an individual has for a basic civil infraction ticket (a ticket that carries only a fine or possibility of points on your driving record) are numerous.

1.)pay the ticket- suck it up and just pay the fine and be done with it.  This is obviously the quickest and simplest way to deal with the problem.

2.)Post bail and schedule a court date to argue your case.

3.)Set a court date to accept one of the “lesser punishment options” which usually includes the judge reducing the fine and giving the option of traffic school.

When deciding which option to pursue the best place is taking time to know exactly what you were charged with, what your chances are of winning, and how much time you are willing to devote to the process.  In the case of actually getting a lawyer (or doing it yourself) and pleading your case before the judge, the process gets much more complicated and expensive.  I was surprised to read that as little as 3% of traffic tickets are contested.  Especially when it comes to the last option (and the one I chose) courts will often grant a reduced fine and traffic school just for showing up.  To me, that seems like a no brainier. Not surprisingly, the difficult economic times have resulted in an increased number of traffic tickets, which serve as a quick and simple source of revenue for states and local governments.

Ultimately, all my pleading and proofreading got me a stock response in which the officer informed me of my right to contest in person before a judge and that is exactly what I did.  I got my ticket reduced in half and have a day of traffic school that I keep pushing back.  Even better, my insurance rates will not go up which will save me much more money than the ticket itself!

On a side note, I think it is important to remember that this is still a court process and you are going in front of a judge…so look like it! I cringed when I saw some of the people in the room showing up in their sweaty gym clothes, ratty jeans, and other attire totally inappropriate for a court of law.  Oddly enough, I really enjoyed learning about the process and the options available to a citizen wishing to contest a ticket.  There is always a story behind a ticket and the law is not as black and white as first meets the eye for those willing to spend the time and go through the process.

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