Archive for the 'Lawyers' Category

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.

Top 5 TV Shows That Got The Law Wrong

1. Suits

The entire premise of the show Suits is a resounding legal ethical issue. The show follows Mike Ross, a brilliant college dropout with photographic memory who works for Harvey Specter, an attorney. Together, Harvey and Mike take on various legal issues all while keeping their well-kept secret that Mike is not actually a barred attorney. Later on in the show, this secret is leaked out to another attorney at their firm, who also decides to keep mum on the situation.  Suits

In the real world, no law-abiding attorney would ever take the risk of covering up such a huge legal ethic and criminal violation for a non-attorney just because he’s really smart. The consequences would be far too immense for all involved, including the law firm. Harvey would likely be disbarred, face criminal fraud charges, and face potential malpractice suites. Mike could definitely face criminal fraud charges as well as charges for unauthorized practice of law, forgery, and tampering with records. The firm would suffer a shattered reputation and likely be subject to investigation. The repercussions would be tremendous and all the while, genius Mike could have just gone to law school like everyone else.

On the other hand, maybe it’s not such a reach after all—just look at Kimberly M. Kitchen. She managed to pose as an attorney for ten years, make firm partner, and become the president of her county bar association before getting caught.

2. Pretty Little Liars

Pretty Little Liars is far from a legal drama but a lot of mysterious murders go down throughout the show and various members of the cast end up finding themselves behind bars framed as the killer. In one particular instance, main character Alison DiLaurentis finds herself in such a situation. While Alison is preparing for trial, she laments to a visiting friend that her attorney refuses to let her take the stand to testify on her own behalf and that she’s being forced to take a guilty pleaPretty Little Liars

In reality, Alison’s attorney would not be able to force Alison to do anything, including keeping her off the stand in her own criminal trial. In criminal cases, the accused have a constitutional right to take the stand and testify if they so choose. Further, legal ethics mandate attorneys to place their client’s interests first and to diligently and competently represent those interests. Thus, if Alison wanted to take the stand, the most her attorney could lawfully do is advise against it. Similarly, if Alison didn’t want to take the guilty plea, her attorney could not do anything to force her to take it. Someone ought to inform Alison of her rights!

3. The Good Wife

The Good Wife makes for great dramatic television, but might not be the best source for legal ethics lessons. The show has had a number of ethical hiccups throughout the course of its lifetime, but season 3, episode 17, “The Long Way Home,” is one of the most memorable.

In that episode, attorney Alicia Florrick is direct examining her client Colin Sweeney as to whether he had sexually harassed a former employee. Colin testifies he never had sex with the former employee, but once off the stand, he quickly changes his story. Colin admits to Alicia he was lying the whole time and brags about his sexual exploits with the employee.  The Good Wife

Alicia is at a loss as to what to do and turns to her mentor who in turn gives her terrible, horribly unethical advice. Alicia’s mentor assures her she will be immune to any repercussions because she was not aware Colin was lying when he committed perjury. Her mentor further advises her to not tell the judge Colin was lying because she is obligated to protect her client’s interests, and because of this she may still continue to use Colin’s lies in her arguments to the court.

In real life, this is entirely wrong! Lying under oath to a judge is perjury and punishable by law. Any barred attorney knows that continuing to aid a client who you know has committed perjury and who plans to continue committing perjury is a grave ethical breach and could easily get you into trouble with the state bar and the court. An attorney in that situation should have quickly consulted their state’s legal ethics code to ensure they took the proper steps, which could amount to telling the judge and/or withdrawing representation entirely.

4. How To Get Away With Murder

How To Get Away With Murder focuses on defense attorney Annalise Keating who moonlights as a criminal law professor. Throughout the show, Keating is constantly intertwining her students with her clients and teaching them real-life legal lessons. In several instances, Keating brings her students to her firm to interact with clients where the clients will often divulge their entire story.  How To Get Away With Murder

In reality, no defense attorney currently working a case would ever allow for a client to breach the ever-precious attorney-client privilege. Throughout representation, communications between a client and his or her attorney are protected and confidential, but that protection can be broken if such communications are made to third parties who are not serving as agents of the attorney and who are not receiving those communication for the purpose of furnishing legal services.

If an attorney like Keating were to allow her clients to discuss confidential matters with her students, that information would then be considered wide open for the opposing party to interrogate through discovery. In other words, it would be a huge mistake and the client could very well turn around and sue the attorney for malpractice and incompetent representation.

5. Law & Order: Special Victims Unit


Law & Order SVU is a hugely popular crime and legal drama set in New York City. The show follows detectives investigating crimes within the special victims unit and oftentimes the detectives will find incriminating forensic evidence, get the evidence tested, get the bad guy in court, and get the defense attorney to take him down all in the same week. Law & Order

Police departments, courts, and lawyers only dream about criminal cases being rolled out that fast. In reality, it could be years before a criminal case is finally heard before a jury. Attorneys often are not handling a single case at a time and must work with opposing counsel and the court to manage the case and calendar various litigation procedures. So if you’re planning on being involved in a lawsuit, ignore Law & Order timelines and be prepared to do a fair bit of waiting throughout the process.

Jail Security Gone Wrong

Take your bra off if you want to visit your client. That was the order to at least two female attorneys who went to visit their clients in a Cumberland County Jail in Maine. The attorneys refused to remove their bras and left the jail. Cumberland County Sheriff Kevin Joyce said it was important to prohibit breaches in jail security. Jail security was tightened after several security breaches. These breaches included drug smuggling and inmates leaving maximum security cells for sexual trysts.  Security Checkpoint

However, Sheriff Joyce did admit jail staff did go a little too far when ordering the female attorneys to remove their bras. The rule was that no individual entering the jail could set off the jail metal detectors. It was never jail security policy to prohibit attorneys from speaking with their clients.

The sheriff did apologize to the attorneys. It was later discovered that at least 20 other female attorneys complained about having to remove their bras before going through the metal detector in the same jail.

What happened to the female attorneys raises issues for both them and their clients. Did the county jail violate the attorneys’ 14TH Amendment of equal protection? Was there a violation of defendant’s rights to counsel?

Male Attorneys Weren’t Ordered to Remove an Article of Clothing

The 14TH Amendment contains many clauses focused on the rights of citizens in relation to both the local and state governments. The 14TH Amendment also includes the equal protection clause. The clause prevents an individual from being discriminated against because of characteristics such as disability, nationality, or sex.

Sex discrimination is treating a class of people differently based on their gender. The case that struck down sex discrimination pertaining to women is Reed v. Reed. It made an Idaho law, which automatically gave a mandatory preference to men over women when there was two individuals relatives competing to become an administrator over an estate, illegal. The U.S. Supreme Court struck down the law because it gave preference to men over women. The same can be said for what happened at the Cumberland County Jail.

Jail security wanted to prevent illegal activities such as drug smuggling and inmate escapes. That’s fine. The problem is how the staffers went about trying to prevent security breaches. They singled out female attorneys by telling them to remove their bras prior to entering the metal detector.

The female attorneys are supposed to be treated like their male counterparts by the county jail when they went into security. Male attorneys weren’t asked to remove an article of clothing prior to entering the county jail. They were allowed to go through the metal detectors and visit with their clients.

The fact that female attorneys were singled out goes against the 14TH Amendment. Requesting the women remove their bras violated the equal protection clause. The country jail created an environment where female attorneys were treated unfairly. If they didn’t remove their bras, they couldn’t visit their clients. By treating the women differently for no important reason, they were no longer equal to male attorneys who didn’t have to remove any article of clothing.

Clear Case of Prohibiting Attorney-Client Interaction

Criminal defendants have many constitutional rights. You may already know many of them like the right to:

  • Remain silent
  • Have a jury trial
  • Confront witnesses
  • Have a speedy trial

A defendant also has a right to legal representation. This means the defendant must also have access to his attorney. By requiring female attorneys remove their bras to enter the jail, the county jail violated the defendant’s rights. On those days, defendants with female attorneys weren’t allowed to meet with their lawyers or talk about defense strategy. It was possible that the jail staff could have delayed or endangered their cases.

You may think it one day not meeting with an attorney doesn’t matter. It does. Any time a defendant does access to his attorney, rights are violated. In addition, think about the attorney. Attorneys must prove adequate representation to clients. That legal representation shouldn’t be hindered by whether the attorney wears a bra or not.

The Cumberland County Jail in Maine Clearly Violated Constitutional Rights

Maybe you think the county jail violated inmates’ rights more than the female attorneys’ rights. Maybe you think the county jail had to do whatever it had to do to prevent inmate escapes and drug smuggling. Whatever side of the issue you’re on, you have to agree with one thing. The Cumberland County Jail was clearly wrong. It violated the Constitutional rights of female attorneys and their clients.