The Digital Death Knell of Court Reporting

court repWith the age of technology comes new challenges for an old system that has, with some exceptions, of course, proven tried and true. Along the way, many paper-based professions are starting to become digital. This includes attorneys as well as the court system.

With the introduction of online case management programs, it has become increasingly easy to keep digital records of client files. Many firms now keep minimal, if any, client files on paper. Incoming and outgoing mail is scanned, and paper copies are shredded. Correspondence between attorneys is primarily done via e-mail.

The court system too has also been digitalized. Most filing is done electronically, especially in the federal court system.

But now, the digital age is expanding to affect court reporters. This means that instead of a court reporter taking down what is said during a trial or hearing, the court will install microphones and recording equipment to the stands and jury boxes to have the hearings recorded. A transcriber who was not present in the courtroom will then process the recordings after the fact.

In Massachusetts, these systems are already in place for most civil matters in Superior Court, but the Commonwealth is set to spend $5 million to upgrade the entire system, including expanding it to the criminal side. This would include installing the digital reporting system in 455 courtrooms in 100 different courthouses.

But this poses some potential problems. The primary concern is how well the microphones will pick up the voices of the attorneys as they move around the courtroom to examine witnesses. Another concern is that it will be difficult for transcribers to distinguish between two lawyers arguing over each other.

And what about the one caveat that no one has managed to figure out? What if the equipment, and the program, just stops working? By the time it would be noticed, valuable testimony might have already been given. This could potentially compromise someone’s case, an especially troubling fact in a criminal case.

Perhaps the next thing they should do is replace lawyers with machines?

Arbitrate. Or Else! The First in Levine-Piro Law’s Series on Employment Agreements

174cb0a476dcf7a4e7e4a9e79c7c5919You’ve just started work at a big-box employer. It’s your first day and you’re given a stack of papers to read through and sign. Chances are you will skip right to the signature page. Don’t do it! It might not be the most scintillating thing you’ll ever read, but take the time to read it before you sign.

Over the next few weeks, we’ll focus on a few of the common provisions in employment agreements, starting today with arbitration clauses, which have been in the news recently.

A few weeks ago, it was revealed that Guitar Center, the largest chain of musical instrument retailers in the world with revenue of over $2 billion, was essentially forcing all of its employees to sign a consent to arbitration mid-employment. If employees declined to sign the arbitration clause, they would be terminated.

By signing an arbitration agreement, an employee basically signs away her ability to go to court over issues that come up in connection with her employment, whether it be wage violations, discrimination, or wrongful termination. Instead, those disputes are heard by an arbitrator, who is supposed to be impartial, like a judge. In actuality, many of the big corporations who use arbitration clauses are able to hand-pick the arbitrators that preside over their disputes, thereby all but ensuring the case will be decided in their favor.

It’s one thing to be presented with an employment agreement containing an arbitration provision at the outset of your employment. At that point, you have a choice whether to sign. You could even try to negotiate it. But to be presented with an arbitration agreement mid-employment and told you will be terminated if you decline to sign it? It doesn’t take a legal genius to see that this might not hold up in court. There is a good argument that an arbitration agreement signed mid-employment under threat of termination was signed under duress, thereby invalidating the agreement. In addition to being potentially unlawful, it’s also downright shady.

The moral of this story, if you ask me, is the importance of small business. At Levine-Piro Law, we routinely advise small businesses in all stages of growth. While we would always advise a small business to use an employment agreement no matter how many employees they have, we would also advise them to be flexible if a particular employee has a concern about one of the provisions in the proposed agreement.

If you are looking for a job, you have a lot of things to consider. Employment with a large national corporation comes with lots of perks, but there are drawbacks, too. You will have no bargaining power when you start in terms of the employment agreement you are asked to sign. You will have to sign it. Your only choice, if you don’t like what you read, is to walk away. If you seek employment with a small business instead, you may have the possibility of negotiating some of the provisions we are going to tell you about over the next few weeks.

To Tweet or Not to Tweet: How Social Media Can Tank Your Case

Social-media rubix cubeImagine you’ve won a settlement in a court case after a protracted and difficult legal battle. Naturally you’re going to want to share the good news with your friends on Facebook!

Not so fast.

Chances are your settlement agreement contains a clause prohibiting you from discussing the details publicly. If you violate that provision by spreading the word on social media, you risk forfeiting your settlement money.

In one instance, a Florida plaintiff won an age discrimination settlement from his former employer – but his daughter’s braggadocious tweet violated the agreement’s confidentiality provisions and cost him the entire $80,000 settlement. He kept the smaller amount of $10,000 owed in back wages, but his loose lips, and his daughter’s loose fingers, cost him bigtime.

This isn’t the only type of problem that social media can cause in court. Even what seems like the most innocent of posts can be used against you.

For instance, in a personal injury case, if you claim to be suffering from whiplash or some physical injury that is greatly affecting you, but then post about going to an amusement park, it could be used against you by savvy defense counsel in court – even if you did nothing but watch the babies in their strollers on the outing.

If you are allege that an incident has caused you emotional distress, but you constantly post happy or excited news, or even use happy “emojis,” a creative defense attorney could easily use this type of information to show that you are not being truthful about the true nature of your emotional well-being.

This complicates cases and may make settling your case more difficult.

Beware: A common mistake people make is believing that changing privacy settings will stop posts from being used in court. This is not always true. Facebook privacy settings are complicated. In addition, if you are “tagged” in a friend’s post, you will show up in their news feed.

If you have a case pending, you should discuss social media use with your attorney. Especially if your claim is for personal injury, your attorney will want you to limit your use of social media. If he or she has no idea what you’re talking about, get a new attorney. Many attorneys now have clients sign a “social media warning,” acknowledging that they have discussed these issues at the outset of representation. If you are asked to sign one of these, this isn’t a sign that you have met a slimy lawyer – it’s a sign that you have met a lawyer who is well-versed in current trends.

If you have a personal injury, employment law, or other case, Levine-Piro Law can help – and we will be sure to advise you on how best to navigate social media and protect yourself from your posts being used against you in court. Give us a call at 978-637-2048 or e-mail office@levinepirolaw.com to set up your consultation.

Veterans Claims: Hurry Up and Wait!

Veteran salute flagYou may have heard in recent months that the wait time for Veterans benefits claims has decreased – but many have had claims pending for months or even years. So which is it?

Well, for one, the astounding ‘decrease’ only applies to new applicants – not those who have claims on appeal. VA has also instituted some new programs in the last few years in order to make initial claim processing faster. One of these is the Fully Developed Claim program, which allows claimants to submit all of their evidence at once, certify that there is no additional evidence, and thereby in theory throw the ball into VA’s court for a faster decision.

This is not always the best course of action, however, as VA has a Duty to Assist claimants in developing their claims, and many claimants need that assistance in locating service records and medical records and obtaining a medical exam before there would be enough evidence for VA to issue a favorable decision.

VA also has a few other fast track programs, including for Agent Orange claims and claims filed by Veterans who are homeless or in grave need of financial assistance.

The VA says they used to have 600,000 cases backlogged, meaning having been waiting more than 125 days. Now they are reporting only 73, 000 cases that have met or are over that 125 day limit. But, as a reminder that is just new applicants. While there might only be roughly 73, 000 new applicants, there are still over 400, 000 claims waiting on appeal. This means that there are roughly 500,000 claims pending.

If VA has denied your claim, call Levine-Piro Law at 978-637-2048 to schedule your consultation. A certified Veterans law attorney can assist you in developing the evidence in your case, strengthening your claims, whether for service connection, increased ratings, or earlier effective dates.

Snow Removal: Dealing With A Messy Situation

City life comes with some uniquely vexing issues. As Metro Boston residents collectively groan – or, in limited instances, rejoice – at the area’s first snowfall, many renters and landlords alike may wonder: Whose responsibility is it to take care of this snowy mess?

Under Massachusetts law, if you’re renting an apartment or home, feel free to put your feet up: It is the landlord’s, not the tenant’s, legal obligation to clear away snow and ice from the property.city-snow

An important change to snow removal law occurred in 2010, when the Massachusetts Supreme Judicial Court decided the case Papadopoulos v. Target Corp. Prior to this case, property owners in Massachusetts had no duty to warn of or remove so-called “natural” accumulations of snow or ice. Papadopoulos abolished this “natural accumulation” defense, finally bringing Massachusetts in line with every other state in New England and reinstating the general standard of reasonable care found in other areas of premises liability law. In other words, now landlords must keep their property “reasonably safe” vis-à-vis injuries from snow and ice, just as they have to do in general. As the Court pointed out, what is “reasonable” depends on the circumstances – the type of property at issue, the amount of foot traffic, the expense of snow removal, and the foreseeability of injury, among other factors.

Moving onto leases – Can landlords shift snow removal responsibility and resulting injury liability to their tenants through carefully crafted lease language? Can landlords make their snowy mess their tenant’s snowy mess?

The answer is, for the most part, no. A landlord may not use a lease to shift responsibility for snow removal to his or her tenants – with one exception: where the tenants enter through a private door they do not share with others (for example, where they rent a single family house).

Even in this case, however, it is the landlord, not the tenant, who is nevertheless still liable for any injuries that result from failure to properly remove snow and ice – just as he would be had he kept that responsibility for himself. So it may be wise for landlords to keep this in mind and retain control over this responsibility, where feasible.

If you are a landlord who needs advice on snow removal issues or who is worried about liability for snow and ice related injury, contact Levine-Piro Law for a consultation. If you have been slipped on snow or ice on your landlord’s property or a commercial property and been injured, Levine-Piro Law can help with a personal injury claim. Contact us at 978-637-2048 or office@levinepirolaw.com for a consultation.

Deciding to Open a Small Business

Small Business
There are some things that you will want to do before starting a small business.

Having a plan is crucial. Not just a business plan, which is the framework of your business, you will need to know if your idea for a business is feasible and worth the time, effort and money you will put in to it.

Factors to consider are what the purpose of your services and goods is , what competition there is, and can your potential client base afford, or want, or even need, your services.

Once you are able to determine the feasibility of your business, then you will need a business plan. Your business plan will cover what your short term, mid-term and long term goals of the business are. Your plan should include how you expect to get clients, how many clients you can reasonably expect to get during the initial phase of your business. How you will market your goods/services and how you expect to pay for the expenses of the business. You should be realistic in your expectations.

In starting a small business you should consult with an accountant to determine what you financially can afford to contribute, whether you will need financing, what financial decisions need to be made before deciding whether or not to incorporate a business or use some other form of business, such as a dba. Deciding where to locate your business, whether in a store front, your home or just a virtual office is important. You must decide what structure will best suit your business.

Sole Proprietorship
A sole proprietorship is the most basic type of business to establish. You alone own the company and are responsible for its assets and liabilities. Learn more about the sole proprietor structure.

Limited Liability Company Small Business
An LLC is designed to provide the limited liability features of a corporation as well as the tax efficiency and operational flexibility of a partnership. Learn more about how LLCs are structured.

Cooperative
People form cooperatives to meet a collective need or to provide a service that benefits all member-owners. Learn more about how cooperatives are structured.

Corporation
A corporation (C-corporation) is more complex and generally suggested for larger, established companies with multiple employees. Learn more about how Corporations are structured.

Partnership
There are several different types of partnerships, which depend on the nature of the arrangement and partner responsibility for the business. Learn more about how these are structured.

S Corporation
An S corporation is similar to a C corporation but you are taxed only on the personal level. Learn more about how S corporations are structured.

If you are interested in starting your own small business, we would be glad to help you navigate the many different avenues of business! Contact Levine-Piro Law at 978-637-2048 for a free ten minute phone consultation or e-mail at office@levinepirolaw.com.

Avoid Court, Try Mediation

Court

In any legal matter, especially a divorce, court can add to the contentiousness of the matter, cause further delays, and leave both parties with undesirable results.

There is an option besides court, and that option is mediation.

What is Mediation?

Mediation is a voluntary process in which neutral third party works with the parties to reach a mutually satisfactory resolution.

What is Divorce Mediation?

Divorce Mediation allows couples contemplating, or going through a divorce, a safe and neutral space to work through the issues of the divorce with the assistance of a trained divorce mediator.

Why Should you Choose Mediation?

Mediation is beneficial for multiple reasons. First, mediation allows the parties to maintain control over the outcome of their dispute without the decision resting in the hands of a judge. Additionally mediation can be much more cost efficient than traditional litigation.

What is the Cost of Mediation?

Mediation is usually far more cost effective than retaining individual attorneys and pursuing litigation, however, it is still recommended that each party obtain an attorney to review any agreement written up as a result of the mediation process. In general a divorce can cost each party upwards of $5,000-$10,000 in attorney’s fees. At Middlesex Mediation Group, a division of Levine-Piro Law, P.C. we charge $250.00 per an hour. We find that a typical divorce mediation takes between 4 and 10 hours so the total cost ranges from $1,000-$2,500. Obviously each individual mediation can take more or less time depending on the individual case. Additionally, we do not take any upfront retainers, but rather mediation clients pay at the end of each session. Typically mediation sessions are done in 2 hour blocks, however, one hour time slots may also be used.

If you would like to learn more about Mediation Services offered at Levine-Piro Law, P.C., please call 978-637-2048 or email at office@levinepirolaw.com

Save the Date! Levine-Piro Law Announces Its 2015-2016 Seminar Series

Save the Date!
Levine-Piro Law Announces Its 2015-2016 Seminar Series

Have questions about any of the following?

• Estate planning
• MassHealth and nursing homes
• Special needs trusts
• Special education
• Divorce and financial planning
• Probate, guardianships and conservatorships

Join presenters Attorneys Melissa A. Levine-Piro, Carolyn A. Romano, and Christine M. Boutin at our Maynard location to get your questions answered. The following 75-minute seminars are free and open to the public:

Tue, Sept 15, 11am
Create a Strategic Estate Plan that Protects You, Your Home & Your Legacy

Wed, Oct 14, 7pm
How to Secure Your Children’s Future: Estate Planning for Young Families

Wed, Nov 18, 7pm
Discover the Big Benefits of Special Needs Trusts

Wed, Dec 16, 7pm
Navigate the Maze of Medicare, Medicaid, & Nursing Homes

Wed, Jan 20, 7pm
The Seven I.E.P. Advocacy Strategies to Support Your Child’s Success

Wed, Feb 24, 7pm
What Every Woman Going Through Divorce Needs to Know
Guest Speaker: Renee Senes, Certified Divorce Financial Planner

Wed, Mar 16, 7pm
What to Do When a Loved One Dies: Navigating the Probate Process

Wed, Apr 27, 7pm
When Incapacity Strikes: Helping Mom & Dad Make Decisions

Space is limited, so pre-registration is requested. Contact office@leveinpirolaw.com or 978-637-2048.
Light refreshments will be served. Seminars are held at Levine-Piro Law, 63 Great Road / Rte 117, Suite 101. Ample parking.

Massachusetts’ Rules on Spanking: The Parental Privilege Defense

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Massachusetts’ Rules on Spanking: The Parental Privilege Defense
By Amanda Castro, Esq.

A recent Supreme Judicial Court decision allows parents to use reasonable force in disciplining their children without being charged criminally. The Court ruled in Commonwealth v. Dorvil that the physical force used in disciplining a child must be “reasonably related to the purpose of safeguarding or promoting the welfare” of that child.

This decision arose from a case in which a Father was convicted of assault for publicly spanking his toddler. The SJC overturned that conviction and alluded to spanking being “widely regarded as permissible and warranted” in parenting. In one poll where viewers were asked whether spanking their children is a disciplinary method they would use, 76% answered yes compared to 24% who said no.

The Court, however, gave priority to the child’s safety when balancing between parental rights and protecting children against abuse in cases where it is difficult to distinguish between the two. The highest Court in the state found that public spanking where the child was not injured did not toe this line and was clearly not abuse.

Child advocates across the state are expressing concern over this decision, objecting to the idea that spanking can safeguard or promote the welfare of the child. The advocates note that research shows spanking has long-term negative psychological effects on children. School officials and other mandated reporters say when it comes to reporting abuse, they are not in a position to determine a parent’s intent or reasonableness in spanking a child.

The Court came down on the other side, finding that spanking when preventing or punishing misconduct can be reasonably related to promoting that child’s welfare. However, the Court did set some boundaries stating that the force used must not cause or create the risk of causing injury beyond fleeting pain or minor, temporary marks.

Many teachers, social workers, and concerned citizens hope that the Massachusetts State Legislature will draft legislation that clearly outlines what constitutes child abuse and prohibits parents from physically assaulting their children. As of this recent decision, when it comes to parenting, Mothers, Fathers, and guardians are privileged in spanking their children to a “reasonable” degree.

Special Needs Trusts (SNT's) and Section 8 Housing Eligibility

By Melissa A. Levine-Piro, Esq.

As a law firm, Levine-Piro Law does extensive estate planning for our clients, including the drafting of Special Needs Trusts (SNT’s). A Special Needs Trusts is a carefully drafted trust that allows someone with special needs (the beneficiary) to receive disbursements from the trust without jeopardizing their public benefits, specifically Social Security and Medicaid. Many people with special needs are in Section 8 housing, which is short for Section 8 of the Housing Act of 1937. This Act provides rental housing assistance to landlords so that they can offer low-income housing. To qualify for Section 8 housing, applicants must disclose their income from all sources and meet eligibility requirements.

A recent case presented to the court challenged a housing authority’s decision taht income from a Special Needs Trust counted as income for purposes of Section 8 eligibility.

The Federal Court, in DeCambre v. Brookline Housing Authority (D. Mass., No. 14-13425-WGY, March 25, 2015) said YES and in doing so determined that the beneficiary of a Special Needs Trust in this case was no long eligible for her housing voucher.

Facts of the Case: Kimberly DeCambre was the beneficiary of a special needs trust that was funded with the proceeds from a $330,000 personal injury settlement. Due to extensive injuries, she received Social Security Income and Medicaid and she also received a Section 8 Housing Voucher. The Special Needs Trust was set up to distribute to Ms. DeCambre money for her care and maintence as necessary. Between 2012-2013 the SNT had disbursed over $60,000 to Ms. DeCambre. Because the SNT had disbursed her $60,000, the Brookline Housing Authority who administered the Voucher, informed Ms. DeCambre she was no longer eligible for Section 8. Ms. DeCambre filed suit claiming that the trust disbursements should not be counted as income. The U.S. District Court for Massachusetts ruled that the Brookline Housing Authority properly terminated Ms.DeCamre’s Section 8 Benefits.

If you have a Special Needs Trust drafted for the benefit of a family member or you’re thinking about doing so, make sure you employ the services of an experienced family attorney. Levine-Piro Law offers free 30 minute consultations by phone or in person at our Maynard or Quincy offices.