Negligence

Negligence
Though you can file a personal injury claim for injuries sustained as a result of the intentional act of another personal, most personal injury claims are litigated under a legal theory of negligence or carelessness. To successfully recover damages under a theory of negligence, an injured party must show that:

  • The person causing the injury did not act as a reasonable person would
  • The failure to act reasonably caused the injury
  • The injured party actually suffered loss because of the accident

The Standard of Care
The law of negligence assumes that every person has a duty, in all conduct in their daily lives, to act as a reasonable person would. When driving a car, when building a home, when maintaining property, when designing or marketing a product—in all these instances, a person engaged in the activity must act reasonably. The concept of the “reasonable person” evolved in English common law, through opinions written by judges over centuries of jurisprudence. The “reasonable person” standard does not look at what a “typical” or “average” person would do, but instead is based on a sort of composite of community standards. In a personal injury case, the jury has the responsibility to determine whether or not the actions of the defendant were reasonable, or violated the standard of care.

Causation
Negligence law requires two types of causation:

  • The wrongful act of the defendant must have been the actual, or “but for” cause, such that the injury would not have occurred if the defendant had not acted improperly
  • The wrongful act must also be the “proximate” cause of the injury—This essentially means that the type of injury that occurred must have been reasonably foreseeable by a person committing the wrongful act attributed to
    the defendant. In other words, the injury must not have been the result of a wholly unpredictable event, or chain of events.

Damage
Negligence law provides a basis for recovering actual losses. Even though a defendant may have acted carelessly, if there is no actual or provable loss, there will be no financial recovery.

The Implications of the Defeat of the Defense of Marriage Act

The Implications of the Defeat of the Defense of Marriage Act

After DOMA – Cultural and Legal Changes Ahead?

The Commerce Clause was given a rather wide interpretation in providing the Civil Rights Act of 1964 with the teeth thought necessary to prevent businesses from discriminating against Black Americans. Now that Supreme Court has found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, will the decision be used in a manner similar to the Commerce Clause to leverage legal action against businesses, property owners, churches, schools, or organizations that refuse to recognize homosexual marriage?

The Overturn of DOMA – the Shape of things to Come?

In 2008, Guadalupe Benitez sued her Christian doctors who refused to artificially inseminate her after learning she was a lesbian and having treated her for some time with fertility drugs. The Supreme Court of California sided with Benitez, ruling doctors cannot deny treatment to homosexuals and lesbians due to personal or religious beliefs.

There is also the story of Harriet Bernstein and Luisa Paster. After meeting at a retreat in the Poconos, they developed a relationship and eventually decided they wanted to wed after New Jersey legalized civil unions. Bernstein wanted to exchange vows in an outdoor pavilion commonly used for Methodist Bible studies and church services. When their request was denied, they contacted the New Jersey Division of Civil Rights claiming they were unlawfully discriminated against. Their attorney argued that, just as a restaurant can’t refuse service to a Black customer, the owner of the pavilion could not refuse use of the property to Bernstein and Paster.

Businesses, Retailers, and Property Owners

If the examples mentioned above are any indication of emerging cultural and legal trends – and there are many more like them as a simple Google search will reveal – the legal profession can expect an increase in lawsuits alleging discrimination against homosexual couples. Similar to what happened during the Civil Rights Era, homosexuals and lesbian couples will likely find property owners that do not want to rent a room to them; a wedding planner or cake maker that refuses their business; or a church that refuses to allow them the use of their property for a ceremony.

Oppositely, businesses, property owners, and churches will likely push back against attempts to make them participate in something they object to, usually in terms of the First Amendment protection of free speech. If homosexual and lesbian couples are considered “officially married in the eyes of the State,” it will become increasingly difficult to deny them the same prerogatives as heterosexual couples in these areas of life, business, and property use.

Schools – Sex Education and Parental Rights

Sex education in public schools has been a hotly contested issue ever since Kinsey disciples and inspired advocates exerted institutional power in the medical, psychology, and education professions to advance so-called sex education. While not all sex education programs are the same, many have their roots in the Sexuality Information and Education Council of the United States (SIECUS), a creation of followers of Alfred Kinsey and his views on sexuality.

SIECUS has influenced thinking at the level of the United Nations Educational, Scientific and Cultural Organization (UNESCO). Critics of UNESCO’s “International Guidelines on Sexuality Education” claim it seeks to expose children as young as 5 to the concepts of masturbation and, in later years, to oral and anal sodomy. As more parents learn about these kinds of sex education programs in their child’s school, legal action may be taken if schools move in the direction of what has already happened in England where parents are denied the right to prevent their children from being exposed to these programs.

Possible Changes over the Next Few Decades

Although few on the political left or right want to talk about it, the overturning of DOMA may pave the way for the legalization of polygamy and incest. If the courts have decided that there is, in principle, no reason why same sex couples can’t marry, what reason is there to deny the same right to adult brothers who want to wed or a collection of couples who prefer a polygamous lifestyle? Given the Court’s apparent cultural evolutionary view of things, it may be only a matter of time before legal action is brought by these other groups as well.

In the end, civil rights attorneys, family law lawyers, estate planning attorneys, even employment law attorneys can expect an ever-increasing number of cases related to the recent decision to essentially legalize same sex marriage.

And, what will happen if an attorney refuses to represent one of these couples based on their own conscience?

Beware IP Scams!

Beware IP Scams!

By Malcolm Pipes

There appears to be an uptick in the numbers of IP scams circulating around. A commonly encountered scam uses official-looking notices that claim to originate from governmental trademark and/or patent offices or legitimate vendors advising the recipient to pay fees in order to maintain their trademark and patent rights. However, in most cases, these notices are rather sophisticated scams or solicitations seeking payment for unnecessary services.

Domain Names

A frequent scam involves an email originating from a domain name registrar or IT consulting company based in China that purports to notify a trademark holder that another entity is seeking to register your trademark or business name as a domain name in China or some other locale in Asia (e.g., clientbrand.cn, clientbrand.hk, clientbrand.tw, etc.). Our firm was recently the target of such a scam, which typically starts with an email giving the mark owner a short time to apply for and secure the domain name for their own use. The email may even include a warning that someone else is applying to use your mark as a domain name. While perhaps not a scam per se, these notifications are essentially thinly veiled solicitations seeking your business to register your domain name. If you receive such a solicitation, you should consult us.

Trademark and Patent Services Scams

Another scam involves official looking documents received from an entity with a faux-government sounding name. For trademarks, these may take the form of official sounding organizations such as the “United States Trademark Agency” or the “Trademark Monitoring Service.” These notices often offer monitoring services to track the progress of your trademark application or third-party watch services, renewing a registration, or providing another related service such as obtaining or maintaining a registration, or recording your mark with a trademark “registry” or corporate names/marks database. All of these services require a fee.

These notices are not from the United States Patent and Trademark Office (“PTO”). The PTO will never contact you soliciting fee, other than when a specific service is utilized. Similarly, notifications sent from trademark service companies that seek to provide prosecution services relating to pending trademark applications may be encountered. These notifications often contain alarming language about upcoming deadlines, and sometimes quote a (high and excessive) fee for handling the deadline on the client’s behalf.

While maintenance requirements and fees are due during the term of a patent or trademark registration, owners of these patents or trademark registrations should ensure communications regarding these issues are from the USPTO or their legal counsel, and not from an unaffiliated company. All official correspondence from the USPTO will be from its office in Alexandria, Virginia, or from the domain “@uspto.gov.”

For patents, there are reports of notices from the “Patent & Trademark Office Register of Patents,” that are essentially fraudulent invoices requesting payment of a “filing fee” to a bank located abroad. Please be aware that the US government typically uses the Treasury Department and WILL NEVER request sending funds to a foreign bank.

Other Employment Law

Other legal issues that frequently arise in the employment context include:

  • Minimum Wage disputes, such as disagreements over whether or not employers complied with state or federal minimum wage laws when paying workers
  • Problems with Pensions, from illegal or improper investment of pension funds to disputes over vesting and eligibility for retirement funds
  • Labor Law challenges, such as the rights of workers to form collective bargaining units, to engage in strikes and similar actions to try to obtain certain benefits, and to require union membership for workers

Other Criminal Law

A distinct characteristic of criminal violations—they are all statutory. That means that there must be a written law, enacted by a legislative body (either a state legislature or the U.S. House and Senate), and that the defendant must have acted contrary to what is permitted under the statute. Here are some of the most common types of criminal offenses:

Homicide Crimes
In most instances, to be charged with a criminal offense in connection with the death of another person, it must be shown that you acted either intentionally or recklessly. The laws vary from state to state, but recklessness customarily requires a showing of “wanton disregard” for the value of human life. Most states also have statutes that impose criminal penalties for deaths caused in certain motor vehicle accidents, usually identified as “criminal negligence” or “vehicular homicide.” Murder is the most serious type of homicide crime, and is usually broken down into different types. First degree murder generally requires premeditation and deliberation—essentially a plan. In most states, a homicide committed in the course of another felony is treated the same as first degree murder. Second degree murder, often called “manslaughter,” is typically the charge when someone acts “in the heat of passion” or “as the result of an irresistible impulse.”

Theft Offenses
Theft offenses include larceny, burglary, robbery and receipt of stolen goods. Larceny is typically divided according to the value of goods stolen, with the distinctions being known as grand larceny (larger amounts) and petty
larceny (smaller amounts). Burglary generally requires the unlawful entry onto private property to commit a theft offense, and robbery generally involves the use or threat of force or violence to commit a theft.

Sex Crimes
Sex crimes include a wide range of offenses, from prostitution and solicitation of minors to indecency or lewdness, from rape or molestation to the dissemination of child pornography.

Weapons Offenses
Most states have laws governing what types of weapons a person may possess or carry, as well as the types of permits, if any, that are required for ownership or possession. States also have laws governing the carrying of weapons in school zones, as well as the use of weapons in the commission of a crime. There are also state and federal laws governing the possession, sale, manufacture or distribution of certain “assault” type weapons.

Assault and Battery
Most states have laws criminalizing certain acts as assault or battery. The general distinction is that assault does not require any type of touching, but battery typically does. An assault may occur where the actions of a person put another party in reasonable apprehension of immediate physical touching or injury.

A battery, though, requires an offensive touching. The touching need not cause pain, but must reasonably be considered offensive and unwanted by the recipient. For example, an unwanted kiss or cuddling may constitute
battery. Furthermore, if you attempt to wrongfully touch or make contact with one person, but a third party is wrongfully touched, you can still be charged with battery.

Drug Offenses
Drug offenses generally include the following:

  • Illegal possession of a controlled substance
  • Wrongful sale, distribution or trafficking of an illegal drug
  • The manufacture or cultivation of a proscribed substance, such as meth or marijuana
  • The illegal importation or transfer of controlled substances

You can also be charged with conspiracy to commit a drug crime if you engage in any conduct that furthers the criminal enterprise.

Criminal Conspiracy
Criminal conspiracy is a form of catchall offense, often used when the actions of a person further a criminal scheme or enterprise. The federal RICO (Racketeer Influenced and Corrupt Organizations Act) has been used extensively by federal prosecutors to obtain convictions in organized crime investigations.

Felonies

Felony Defined
As a general rule, felony offenses are those which carry a potential prison term of more than one year. A felony is considered to be a wrong against society as a whole, and the state, in the person of a prosecutor or district attorney, brings all legal action related to felony prosecutions. Conviction of a felony can lead to further restrictions, including the loss of the right to vote, as well as disqualification for ownership of firearms.

Examples of Felonies
Certain crimes, by their very nature, are considered so heinous or severe that they are always considered felonies. Homicide, kidnapping and burglary are examples. In most other instances, whether or not an illegal act constitutes a felony depends on the severity of the crime. With theft crimes, it’s the dollar amount—which varies from state to state—that distinguishes between grand theft/grand larceny, a felony, and petty theft/petty larceny, a misdemeanor.

Most felony charges involve some harm or threat of harm to another person. Many jurisdictions punish repeat offenses for certain crimes, such as DUI, as felonies, even though a first offense may be a misdemeanor.

Search and Seizure

Your Right to Be Free From Unreasonable Search or Seizure

The 4th Amendment provides everyone with protection from “unreasonable searches and seizures.” The 4th Amendment also requires that a court find probable cause before issuing a search warrant. The courts have consistently held that these rights only apply if a person has “a legitimate expectation of privacy” in the place or thing to be searched. To determine whether such expectation of privacy existed, the court will ask the following questions:

  • Did you actually expect some degree of privacy?
  • Was your expectation objectively reasonable? Is society willing to recognize it as such?

Based on the unique circumstances of each case, the court may determine that you either had no expectation of privacy—perhaps you allowed unlimited access to the place or thing—or that your expectation wasn’t reasonable. If you fail to meet the test, any location—home, car, boat, office, bank records, safe deposit box, trash barrel—may be subject to a legal search.

To establish probable cause, the courts have held that police officers must be able to point to objective facts. An officer does not need the factual evidence necessary to prove a case in court, but it must be more than a mere suspicion. The determination of probable cause must be made by a judge, not by a law enforcement officer.

Other Family Law

Other Family Law Matters
Family law issues that are becoming more and more common include:

  • Grandparents’ Rights—Some states allow grandparents to seek custody and/or visitation with a minor grandchild. In most instances, to receive custody, the grandparent must show that both biological parents are unfit to take care of the minor child. A grandparent who has been awarded custody of a minor child may also pursue child support payments.
  • Same Sex Family Law Issues—As more and more states legalize same sex marriages, couples in same-sex unions increasingly face many of the same legal challenges as parties in a “traditional” marriage, including questions about separation and divorce, custody of children, visitation, and division of property.
  • Name Changes—Legally changing your name can sometimes be a complicated process. An attorney can make certain that you’ve met all the requirements, and completed and filed all necessary documentation.

Prenuptial Agreements

Prenuptial/Antenuptial Agreements
A prenuptial agreement is essentially a written contract entered into by parties who plan to get married. In some jurisdictions, it is referred to as an antenuptial agreement. Typically, a prenuptial agreement addresses all the contingencies that might need to be resolved in the event the marriage does not last, usually focusing on the ownership and division of property.

When is a Prenuptial Agreement a Good Idea?
Historically, prenuptial agreements have been used almost exclusively by individuals with substantial net worth, in an effort to protect their estate during a divorce. However, prenuptial agreements can offer a number of benefits to
individuals with a modest net worth:

  • A prenuptial agreement can ensure that specific items of property go to designated people, including your children from a prior marriage.
  • A prenuptial agreement may clarify financial rights during a marriage, such as access to certain property or financial accounts.
  • A prenuptial agreement may shield you from liability for any debts your spouse brings into the marriage.
  • A prenuptial agreement can simplify the divorce process, avoiding costly and protracted battles over debts and assets.

The Consequences of Not Having a Prenuptial Agreement
Without a prenuptial agreement, if your marriage ends, you will have to either find a way to come to agreement on the division of debts and assets, or take the matter to court. Generally, spouses have priority claims to property brought into a marriage, but some state laws make all such property jointly owned. Furthermore, all debts incurred by either party to a marriage are typically shared equally upon divorce.

A Prenuptial Agreement Should Be Executed in Conjunction with an Estate Plan
A prenuptial agreement will typically only address what happens in the event of divorce or separation. What happens to your property when you die will be covered by your estate plan. Accordingly, when you enter into a prenuptial agreement, you should also execute an estate plan that clearly states how you want your property divided when you die.

Sexual Harassment in the Workplace

The Types of Sexual Harassment
Sexual harassment typically takes one of two forms:

  • Quid pro quo harassment—Literally translated from the Latin, quid pro quo means “this for that.” In quid pro quo sexual harassment, there is a promise of a work-related benefit, or the threat of a work-related sanction, in
    exchange for sexual favors.
  • The creation of a hostile environment based on sex—A hostile environment based on sex exists when an employee is subject to a pattern of exposure to unwanted sexual behavior in the workplace, and where supervisors or managers take no steps to discourage the inappropriate behavior.

Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment necessarily involves a person who has authority over the victim employee. The action by the manager or supervisor may involve the promise of any work-related benefit—a promotion, raise, new office, opportunity to travel, exclusion from undesirable assignments, access to benefits—in exchange for some type of sexual favor. Conversely, it may include threats of work-related punishment—assignment of undesirable tasks, demotion, denial of benefits, rejection for raise or promotion, transfer to another office—if the victim refuses to engage in sexual conduct.

Quid pro quo sexual harassment may be male to female, female to male, or even same sex.

The Creation of a Hostile Environment Based on Sex
A hostile environment claim customarily involves wrongful conduct by both supervisors and co-workers. However, a hostile environment can exist where employers condone wrongful acts by clients, customers, suppliers and even delivery persons.

A hostile environment will be considered to exist where there is repeated exposure to behavior that is sexually oriented, such that the sexual nature of the behavior pervades the work environment. Typically, an employee who finds the behavior offensive must report the behavior to a supervisor, and there must either be no response or an inadequate response. The courts have held a wide range of behaviors to potentially create a hostile environment, including:

  • Publicly displayed pictures, cartoons, images, dolls, statuettes or icons with a sexual theme or of a sexual nature
  • Pervasive telling of obscene, dirty or sexually related jokes or stories
  • Repeated touching of a sexual nature, without permission or consent
  • The use of derogatory terms with a sexual meaning
  • E-mails, memos or other communications with sexual material included