Archive for the 'Lawyers' Category

Transgender Laws in the United States

U.S. History has been marked by continual efforts to expand the inclusiveness of civil rights. While we have made strides in gender equality and gay rights, we have a long ways to go. Presently, transgender rights are at the forefront, with celebrities like Caitlyn Jenner and Laverne Cox who have brought transgender issues to the collective consciousness like never before.

Even though we are beginning to recognize the transgender community, we are far from recognizing broad legal rights for those who identify as transgender.

The United States is behind three European countries that not only recognize transgender issues as the next civil rights movement, but also provide comprehensive legal rights for those who identify as transgender. Denmark, Malta, and now Ireland allow transgender people over the age of 18 to change their legal gender without medical or state intervention. Changing one’s legal gender is a huge progress for the majority of European countries, many of whom require transgender individuals to undergo surgery and sterilization, or be diagnosed with a mental disorder, and get divorced if married, to have their desired gender recognized legally.

Who Is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.  LGBT Flag

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

How Does the United States’ Transgender Laws Compare?

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

While there are laws which protect transgender people from discrimination, there is no current law similar to Denmark, Malta and Ireland’s that allow transgender people to change their legal identification without intervention. Although one can easily change his or her name in any state, it is much more difficult to change the name on one’s birth certificate, which requires a court order. Changing the gender marker on one’s birth certificate is even more difficult. In the majority of states, it requires proof of surgical treatment to change one’s sex. Some states, including California, Oregon, New York, and Washington, allow one to change the gender marker on their birth certificate with proof of appropriate clinical treatment, even if no surgical treatment is sought.

Even if one changes their gender marker on their birth certificate, it does not mean that one’s sex is legally changed. There are some cases involving marriages in the United States before same-sex marriage was legalized where the court ignored the corrected birth certificate and decided the marriage was invalid. Now that same-sex marriage is legal, the gender marker on one’s birth certificate for these cases is immaterial.

The United States does not allow transgender people the same opportunity to change their legal identity without medical intervention. Ireland’s bill that afforded the transgender community this legal right was passed months after Ireland legalized same-sex marriage by popular vote. It stands to reason that because same-sex marriage is now legal in the United States, we may soon be following suit to expand transgender rights.

Should Americans Have a Right to A Lawyer in Civil Court?

In 1963, the Supreme Court decided Gideon v. Wainwright, ruling unanimously that the Constitution required all criminal defendants to have a right to representation in court. One of the main rationales Justice Black’s opinion in Gideon was that the “noble ideal” of “fair trials before impartial tribunals  in which every defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

In criminal cases, a person’s liberty may be at stake. However, civil cases can also inflict great personal loss. Some civil cases involve large sums of money, others may involve housing, public benefits, child custody, or employment. Many advocate providing legal counsel as a right in cases where basic rights like family or shelter are at risk. Often, these decisions are the key to helping indigent clients move forward in their lives.

Legal Aid: Solution or Stopgap?

Currently, the poor have some access to legal assistance in civil cases through Legal Aid. Legal aid programs assist in three main types of cases: accessing basic necessities (like housing, healthcare and government benefits); ensuring safety and stability (like domestic violence, guardianship, and student discipline); and economic security (like employment, taxes, and consumer protection). These programs exist all over the country, and are very helpful to many. However, Legal Aid offices are not mandated to take all cases, and due to lack of resources must choose carefully whether to represent clients.  Legal Assistance

However, a right to an attorney in certain cases would guarantee that clients could not be turned away. Even if this were to exist, a separate system of Legal Aid would be an important community resource. This is because Legal Aid often helps clients who are plaintiffs or who are applying for certain programs or benefits; some of what they provide would not overlap with a civil Gideon. A civil right to representation in certain cases could potentially create new legal jobs and would ideally free up legal aid attorneys to do more good work.

Would the Failings of the Public Defender System Be Repeated?

While there is a guaranteed right to representation in criminal cases, there are also many flaws in the public defender system. Especially in some counties, public defense attorneys are overloaded with too many clients and sometimes do not have the time and energy that a private criminal lawyer could bring to an individual case. On the other hand, these attorneys are often incredibly well-versed in criminal law and some of the most experienced trial lawyers. Dedicated public defenders can often be great assets to their clients.

One concern is that the lack of staffing and resources faced currently by criminal public defenders would just be mirrored in a civil defense system. This is a rather cynical argument, as though our society could not possibly provide better funding to both a criminal and civil public defense system. The limitations that public defenders face are due to a lack of economic commitment to the principles of just representation. In a fair legal system, public defense would be sufficiently funded; we should try to move forward by making this a reality rather than naysaying.

The Way Forward

President Obama is a major proponent of increasing civil representation. In September, his administration released a memorandum that established the White House Legal Aid Interagency Roundtable to “increase the availability of meaningful access to justice for individuals and families and thereby improve the outcomes of an array of Federal programs.” This statement reflects another important point about the benefits of civil representation—local and federal governments can set up meaningful programs or pass important legislation in hopes of protecting vulnerable individuals. However, in a system where few people are adequately represented, those programs and laws won’t work as intended.

At the same time, there has long been a national movement within the legal community to find a way to provide an attorney for those facing certain civil issues. Lawyers and judges are uncomfortable with indigent and vulnerable clients trying to represent themselves in complicated matters. In several states and jurisdictions, pilot programs have begun to try to work out what it would take to provide these services.

As Martin Luther King famously said, “injustice anywhere is a threat to justice everywhere.” A commitment to civil legal representation for all would be a step forward in defeating injustice.

California Turns Down Bill That Would Make It Easier To Sue Employers

Thanks to Governor Jerry Brown’s veto of Assembly Bill 465 (A.B. 465), employers in California are permitted to place arbitration agreements in employment contracts without further restrictions. A.B. 465 provided that arbitration agreements, and other waivers of legal rights must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” The Bill would have also banned mandatory arbitration. Mandatory arbitration requires employees to go to arbitration in the event of an employment dispute instead of taking the matter to court. In short, California employers may continue to enforce arbitration agreements set forth in employment contracts.

What is Arbitration?

Arbitration is an alternative dispute resolution (ADR) method. ARD is a means of resolving conflicts outside of the court system. The two most common forms of ADR are arbitration and mediation.

  • Mediation: Mediation is a process where disputing parties reach a mutual agreement with the help of a third-party mediator. Parties in mediation usually retain significant control over the process. In mediation, the parties in dispute must reach their own agreement; the mediator cannot decide the outcome. The agreement reached by the parties is usually non-binding. Thus, parties may pursue litigation after the conclusion of mediation.
  • Arbitration: Arbitration is a process where a neutral arbitrator (usually a lawyer or a retired judge) make a decision following a hearing. Usually, the arbitrator’s decision is binding and enforceable, unless the parties agree that it is non-binding. Because the decision reached in arbitration is binding, the arbitrating parties cannot litigate the final decision in court, however, awards can be appealed on a very limited basis. If the appeal contesting an arbitration award is successful the arbitration award is voided and the dispute may be litigated in court.

Arbitration is usually initiated when a court orders the parties to arbitrate or there is an applicable arbitration clause related to the dispute. For example, employers may place arbitration clauses in an employment contract that sends employment disputes must be submitted to arbitration.

Arbitration v. Litigation?

Arbitration is frequently a preferred alternative to trial when resolving disputes. Primarily, parties prefer arbitration over litigation because arbitration is a faster process and frequently less expensive than resolving an issue in court. Arbitration is also not part of the public record, unlike court. Thus, if parties want to maintain a degree of confidentiality, arbitration is more ideal.  Arbitration

Since arbitration is usually a more cost effective and confidential method of handling disputes,  employers usually prefer arbitration. If California limits employers ability to arbitration employment law claims, employers could locate elsewhere, which could create a loss of jobs in the state.

Critics of arbitration and supporters of A.B. 465 have largely argued that allowing mandatory arbitration agreements in employment contracts are unfair to employees. A.B. 465, as discussed above, would have limited employers’ ability to place arbitration agreements in their employment contracts.  It appears coercive to mandate that employees with otherwise viable employment law claims must submit their cases to arbitration. Employment attorneys note that frequently employees with viable cases receive far less in arbitration awards than they would have received in a traditional jury trial. Thus, the veto would appear to be a loss for employees in California.

Despite the apparent disadvantage the veto might have for employees, existing law in California already protects employees from seemingly unfair arbitration agreements. Under standard contract law, if an arbitration agreement is unconscionable or overly favorable to the employer, the arbitration agreement will be invalid.  Moreover, California law also requires employers to pay for arbitration should a dispute arise. Thus, employees with disputes have a cost-effective method of resolving employment disputes.

What Does the Veto Mean for California Employers?

Governor Brown’s veto means that employers in California may continue to place mandatory arbitration agreements in employment contracts. Nevertheless, employers must still adhere to California laws regulating arbitration that are already in place.

Repeat Head Injuries Create Legal Issues in Sports

Head Injuries and the NFL

During his NFL career from 1958-1972, Wayne Walker received over 20 concussions in 200 games, getting knocked out twice. On October 29, he announced that he suffers from Parkinson’s disease, a degenerative nerve disorder. While Parkinson’s is normally genetic, it can also be triggered by other factors. Walker said in the interview that once he completely lost consciousness but returned to the field in the same game.

In May 2015, Adrian Robinson, a former NFL player, committed suicide. It was confirmed after his death that he had chronic traumatic encephalopathy (CTE), one of the more common diagnoses for football players. Some effects of CTE are commonly referred to as being “punch drunk.” There are many symptoms of CTE, which can include depression, memory loss, and aggression.   Head Injury

In addition to CTE, the risk for Parkinson’s, ALS, Alzheimer’s, and other neurological diseases is much higher for NFL players. The brains of many NFL players have been studied after death, and at least 70 have showed signs of disease. The Concussion Legacy Foundation at Boston University found evidence of CTE in 88 out of 92 NFL players studied so far. Perhaps it should come as no surprise that this March, Chris Borland retired from the San Francisco 49ers at age 24. He felt that as a professional linebacker, he could avoid the risk of repeat brain trauma and the progressive neurological diseases that often follow.

Head Injury Lawsuits

There are often limits to how liable others are for sports injuries. Athletes often “assume the risk” or consent to anything that happens while playing a rough-and-tumble sport. However, there may be legal recourse for equipment failures, play that violates the rules of the game, or, as in the case of the NFL, leagues that misinform players about the risks involved.

Earlier this year, a judge approved a settlement of at least $900 million dollars a suit filed by retired NFL players and their families. The lawsuit claimed that the NFL knew of the dangers of traumatic head injuries and did not disclose them to players. The proceeds of the suit will allow for players or their heirs to receive up to $5 million for a diagnosis of ALS, $4 million for diagnosis of CTE, and up to $3.5 million for Parkinson’s and Alzheimer’s. However, the amount of money is currently being challenged as insufficient to cover all of the potential injuries caused by the game.

Riddell, a helmet manufacturer, has also been implicated in several lawsuits. Retired NFL players have attempted to sue the company, and the NFL declared that Riddell would no longer make their “official” helmet in 2013. Families of high school athletes in Colorado, California, and now New Jersey have also brought suit against Riddell for injuries on the field.

What is the Best Way Forward for Football Players?

Now that society is becoming aware of the dangers of repetitive head injuries, many steps are being taken to make football safer. The NFL is taking action to try to reduce head injuries on the field, and has donated $30 million to the National Institute of Health (NIH) to study the effects of concussion. At all levels of the game, coaches and players are paying more attention to safety. Yet, as one NIH flyer states, “every year, between 1.6 million and 3.8 million sports-related concussions are estimated in the United States, particularly among young athletes.”

The NIH advises coaches, players, and their families that they should learn to recognize the signs of concussion: all concussions are serious, and most occur without loss of consciousness. Not all concussions are caused by blows to the head, but can also be caused by “a blow to the body that causes the head and brain to move rapidly back and forth.” If a player seems drowsy, slurs speech, has a headache, has memory problems, or has any other signs of concussion, they should be taken out of play and given medical attention. Importantly, they should also not be allowed to play again until a doctor says that they can.

Personal injury and product liability lawsuits will also continue to hold organizations, manufacturers, and even individual coaches accountable for failing to protect players in certain cases. If you or someone you know has suffered from football-related head injuries, you may wish to contact an attorney to see if you have any legal recourse.

Top 5 Mistakes Clients Make in Personal Injury Law

Mistakes. They sometimes happen. Unfortunately, when clients make mistakes in their personal injury case, it can be the difference between winning and losing a claim. Below are five of the most common mistakes clients make in personal injury cases.

5. Rebelling against Doctor’s Orders

Failing to treat an injury because of someone’s negligence is a fairly common mistake. When a plaintiff files a claim against someone for an injury, the last thing he should do is ignore doctor’s treatment orders. Failing to treat an injury ranges from not taking medication to missing doctor’s appointments and self-treating the injury.

A successful personal injury claim involves proving pain and suffering caused by the defendant’s negligence. Pain and suffering damages are awarded to some plaintiffs. The damages are intended to compensate the plaintiff for losses sustained because of the injury. The losses include emotional trauma and physical pain. Any time a person fails to follow doctor’s orders, one strong argument can be made: the plaintiff is the cause of his pain and suffering. This argument, if successful, could lead to little to no money to cover pain and suffering.

4. Failing to Disclose a Pre-existing Injury

A pre-existing injury refers to any medical condition or injury an individual had prior to the accident. Pre-existing injuries are the focus of personal injury claims because they are factored into the amount of money the plaintiff may receive in an award or settlement.

Clients with pre-existing injuries fear not receiving an award or less money because of the injury. As a result, they make the common mistake of not disclosing the prior injury to their doctors. What they don’t realize is that the defense attorney will request his previous health records looking for any prior injuries in the location where the new injury occurred.  Car Accident

If they discover the prior injury in the same part of the body the plaintiff claims is injured, it will damage the case. To the judge, jury, and defense attorney, it looks like the plaintiff lied or is hiding something.

3. Settling a Claim without Speaking with an Attorney

A settlement offer is presented from one party to another as reimbursement for injuries suffered in a personal injury case. Typically a defendant or insurance company will offer a settlement to a plaintiff to avoid going to trial. Settling a claim without speaking to an attorney is a critical mistake. Unless a plaintiff receives a settlement offer after negotiations between his attorney and the other party, there’s no way to know if it’s fair.

Remember, a defendant is trying to pay the least amount of money possible. Sometimes, a settlement offer won’t cover a plaintiff’s medical bills, pain and suffering, or lost wages. This means serious financial trouble for the plaintiff. He can’t sue for the remaining balance not covered by the settlement. Part of the settlement offer requires a plaintiff to give up the right to sue for any future or past damages.

2. Withholding Information from Your Attorney

To win, a personal injury attorney needs to know everything about the case. Unfortunately, the client may decide to withhold facts from his attorney which will damage the case. For example, a client may exaggerate injuries to his attorney. The attorney will aggressively fight to obtain the compensation to cover severe injuries. A defendant will discover the plaintiff’s injury isn’t as bad as he claims. How? Sometimes, the defense attorney will place the plaintiff under surveillance or check social media accounts. It doesn’t matter how the defense finds out, the damage is done.

1. Plaintiff Acts as Own Attorney

Many people think they can do a better job than a personal injury attorney at negotiating and presenting their case. So instead of seeking legal representation, they handle their own cases. The problem is an attorney knows how to negotiate, document injuries, and prove liability. Most laypersons do not. So they will actually do more harm than good when trying to win their case. The best way to avoid this mistake is to leave representing clients to the professionals.