What to prove in general negligence cases

In a medical malpractice case, the common questions being inquired into by the court trying the case would include the following: Who is to be blamed for the malpractice? Would it be the physician alone or will it include the nurses assisting? Would the other medical personnel be implicated? Or would the hospital, as a business entity, be included as among the defendants? These are the common issues being tackled in an actual court case setting. The determination on who should be made defendants will play a very important role in the medical malpractice case. Initially, the common practice for medical malpractice lawyers is to include the physician and the hospital in the medical malpractice complaint. This is just to make sure that in case the physician is found guilty as alleged, and if ever such physician is insolvent, the hospital as the employer can be made as subsidiary liable for the medical malpractice claims. However, if we try to take a closer look, the defendant physician or whoever conducted the medical operation, or prescribed the wrong prescription, should be the one to be made defendant and not the hospital as a business entity. We must take note that a medical malpractice is considered a crime and it is well settled that an artificial entity, such as a hospital, cannot be charged of a crime. It cannot be imprisoned. Unlike the physician, if he or she committed the crime of medical malpractice, there can be incarceration. It is true that the hospital, as a business entity, can be made to pay for the damages and indemnifications incurred by the victim. But obviously, it can never be imprisoned.

Having said that, now we can determine against whom the medical malpractice claim should be filed by just distinguishing the nature of action that the victim wants to make. If the victim intends only to seek payment of damages and/or indemnification, he or she can alternatively or concurrently implicate the physician and/or the hospital as defendants. Either of these two defendants can be made to pay for the monetary amount of damages. On the other hand, if the medical malpractice action to be filed is criminal in nature, then the only defendant that can be implicated would be the erring physician and not the hospital. This is because of the fact that the hospital, as an artificial entity, cannot be imprisoned.

Our Los Angeles Personal Injury Attorneys are expert in handling cases such as vehicle accident , wrongful death , animal attack , and other personal injury cases. For more information visit http://www.personalinjurydefenders.com

Intellectual Property at All Stages of a Company’s Life

Many businesses believe that intellectual property (IP) law only applies to the large corporate giants. Nothing could be further from the truth. Business owners who take the time to educate themselves on the basics of IP will be able to avoid common pitfalls and take full advantage of IP opportunities throughout the life of the business. After all, there are many points in the life of a business firm when the firm and its employees should consider IP matters. Starting Up: The Company’s Name

You should start thinking of IP issues as soon as you begin thinking about starting a company. While few people think of their firm name as IP that warrants protection, everyone desires a distinctive name that customers easily associate with a particular organization. If a business plans on conducting interstate business then a comprehensive trademark/service mark search is warranted. Obviously, one should always error on the conservative side. You don’t want to find out you cannot use a particular name outside the initial state after you have developed a booming business and achieved name recognition.

An informed business owner must understand the simple distinctions between trademarks and service marks, as well as distinctions between state and federal registration. First, a trademark is any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

One common misconception about marks is that if a mark is not federally registered then it is not protected. Actually, common law rights arise in a mark from its actual use in commerce even if it is not registered federally or with a state. Common law rights offer less extensive protection than afforded by state trademark registration, which offers less extensive protection than afforded by federal trademark registration.

Federal registration has several advantages including notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. Therefore, when forming a company one should file for state mark registration at a minimum, and preferably seek federal registration.

Employee Policies and IP Law

During the formation stages of a business, one must consider establishing a non-compete policy. Most company’s go through tremendous efforts to protect their physical property while paying little attention to protecting their intellectual property, which is often worth far more than a company’s physical assets. A company should do everything possible to ensure valuable information such as marketing data, client lists, and other proprietary information does not fall into a competitor’s hands.

Such information generally falls into the hands of a competitor when they hire away an employee that had access to this confidential information. Non-compete agreements can minimize this threat. A non-compete agreement is a contract between the employee and employer that explicitly identifies what the employee may and may not do when that employee leaves the company. The laws governing these agreements vary from state to state, however, virtually all states require reasonableness in the scope and type of information protected.

Non-compete agreements are essential for the owners of a company and should be addressed in the articles of incorporation/organization or the partnership agreement. Similarly, key employees that have access to confidential information should be required to sign a non-compete agreement.

Ideally, employment should be conditioned upon the signing of a non-compete agreement. However, when key employees and owners are developed from within the company, a plan must be in place identifying when an “up and comer” must sign such an agreement. Some states consider continued employment with the company sufficient consideration to support the enforceability of a non-compete agreement, however, one should always have their attorney draft such agreements and identify procedures that are in accordance with state law. Often it is convenient to require that a non-compete agreement be signed prior to promotion to management or other high-level positions.

Generally, low level staff should not be required to sign non-compete agreements unless they have access to information the company needs to protect. Lower level staff members generally do not have access to this information and are not hired away for this knowledge. Additionally, employees expected to sign non-compete agreements often require additional compensation, therefore the fewer employees that really need to sign, the less expense to the employer.

In addition to non-compete agreements, management should be required to sign confidentiality agreements. Everyone is familiar with the old adage that “loose lips sink ships.” While the confidential information shared among the executives of a business is not likely to sink a ship, it undoubtedly has the potential to cause friction between employees and management and result in tremendous reductions in productivity. It is simple human nature that when one must sign an agreement to keep certain information confidential they will be less likely to disclose the information.

Copyright Issues Occur in Daily Practice

Once the company has been formed, its name and products protected with service marks and trademarks, and appropriate non-compete and confidentiality agreements signed, the focus must turn to IP issues encountered during operation of the business.

Business owners often make mistakes regarding copyright law. Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works, including architectural works. This protection is available to both published and unpublished works. Copyright protection may be appropriate for the company’s web site, marketing material, published articles, installation instructions, user’s manuals, and software developed in-house.

Patent Law and the Business Owner

A patent on an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.

The right conferred by the patent grant is “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. There are three types of patents: utility, design, and plant. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matter, or any new useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants.

Business owners must avoid the mindset that they are just applying tried and true principles in carrying out their business.

Trade Secrets

Business owners should also be aware of the potential for trade secret protection. Consider that fact that a recent study estimates that Fortune 100 companies lost more then $45 billion in 1999 from the theft of proprietary information.

Generally, a “trade secret” can include all forms and types of financial, business, scientific, technical, economic, or engineering information. This includes patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. Protection is available if the owner has taken reasonable measures to keep the information secret; and the information has independent economic value, actual or potential, from not being generally known. Trade secrets are afforded protection both under state and federal law.

A protectable trade secret may not be “within the realm of general skills and knowledge” in one’s field of business and is something not “readily duplicated without involving considerable time, effort or expense.” Therefore, business owners should discuss trade secret matters both with their attorney and clients.

Business Owners as Software Pirates?

The one IP issue that may get the most small businesses into trouble is software piracy, both intentional and inadvertent. Unlicensed copying of software by businesses and individuals, known as end-user copying, is the most common type of software piracy found within new businesses. This includes installing software on more company computers than you have licenses for and disk swapping among friends and associates. These activities are illegal and put not only the individual performing the copying at risk, but also the company.

Software piracy does not only hurt the software companies. A recent survey estimates that software piracy resulted in the loss of 118,000 jobs in the U.S. and approximately $5.6 billion in wages! Every business should have a written policy against unauthorized software duplication. Additionally, software and licenses should be meticulously cataloged and stored in a locked enclosure.

You will get caught! All it takes is one disgruntled employee to tip off a software company. Just consider that a recent tip offered to Autodesk through their website resulted in a settlement of close to $208,000 with a consulting engineering firm.

Final Issues: IP Concerns in Winding Up a Business

Every business must plan for the eventual retirement or discharge of the owners. Virtually every ownership agreement will include the necessary provisions as to how the company will be valued and the method of distributing the leaving owners share in the business. However, owners of businesses having intellectual property should be particularly concerned as to how it will be valued. While intellectual property valuation is a complicated subject beyond the scope of this article, it’s not a subject to consider for the first time when dissolving a firm. It should be discussed with your attorney at the outset to avoid litigation when an owner leaves the firm.

DISCLAIMER

We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.

David Dawsey is an experienced intellectual property attorney specializing in the prosecution and litigation of domestic and foreign patents, trademarks, and copyright. David is one of the few patent attorneys that is also a registered Professional Engineer. In addition to his legal and engineering education, David has also earned an MBA degree. You may reach David via the firm website www.Invention-Protection.com.

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The Obviousness of Chemical Compounds in Patent Applications

A patentable invention is an invention that is “novel” under 35 U.S.C.A. § 102, “useful” under 35 U.S.C.A. § 101, and “nonobvious” under 35 U.S.C.A. § 103. Section 103(a) of the Patent Act sets forth the parameter of the obviousness requirement: A patent may not be obtained though the invention is not identically disclosed or described as set forth in Section 102 of this title, if the differences between the subject matter sought to be patented and the prior art must not be such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

In Graham v. John Deere Co., 383 U.S. 1, 17 (1966), the United States Supreme Court interpreted this language to mean that the ultimate determination on the issue of obviousness is treated as a question of law but is based on factual inquires that include (1) the scope and content of the prior art; (2) the differences between the prior art and the claimed invention; (3) the level of skill in the art; and (4) the objective evidence of non-obviousness.

To obtain a patent on a new chemical compound, the compound must meet the nonobviousness requirement at the time it is invented. Special issues, however, arise with chemical patents because unlike electrical and mechanical sciences, chemistry is an unpredictable art. Minor changes in structures can dramatically affect a compound’s properties. Thus, it is inherently difficult for a court to determine the obviousness of a claimed compound with a similar structure to that of a prior art.

The extent of the challenge to determine the obviousness of chemical compounds can be illustrated by the issues faced by the court in Yamanouchi Pharmaceutical Co. v. Danbury Pharmacal, 231 F.3d 1339 (Fed. Cir. 2000). In Yamanouchi, the dispute centered on whether one skilled in the art would have considered it obvious to make the drug Famotidine by (1) combining the polar tail from lead compound 44 with the modified heterocycle from Tiotidine to form an intermediate compound, and (2) substituting the carbamoyl group in the intermediate compound with a sulfamoyl group to create Famotidine as shown below in Scheme 1. It was well known that both Tiotidine and Tagamet were prior compounds, of which Tagamet was a successful drug in market place while Tiotidine failed in preclinical trials due to its high toxicity. Both compounds, however, showed high efficacy as inhibitors of gastric acid secretion.

The court in Yamanouchi upheld the patent against an assertion of obviousness. Id. at 1345. The court explained, “For a chemical compound, a prima facie case of obviousness requires a showing of ‘structural similarity between claimed and prior art subject matter … where the prior art gives reason or motivation to make the claimed compositions.'” Id. at 1343 (quoting In re Dillon, 919 F.3d 688, 692 (Fed. Cir. 1990)). Even though the claimed compound failed the test of structural similarity, the Yamanouchi court invalidated a prima facie case of obviousness based on a lack of motivation to combine the prior art to make the claimed invention with similar biological function to that of the prior art.

A. Structural similarity

Structural similarity between chemical compounds has effectively created a unique and troublesome area of patent law. In re Jones, 958 F.2d 347, 350 (Fed. Cir. 1992). In determining the obviousness of a traditional chemical compound, courts previously focused on the similarity between the structures of a claimed compound and that of a compound disclosed in the prior art. In re Hass, 141 F.2d 122 (C.C.P.A 1944); In re Henze, 181 F.2d 196 (C.C.P.A. 1950). In Hass, the claimed compound was a homolog of a prior art compound (Scheme 2). See Hass, 141 F.2d at 125. There was only one more carbon unit in the claimed compound than that in the prior art. The Court of Claims and Patent Appeals held that the claimed compound was not patentable unless it revealed “some nonobvious or unexpected beneficial properties not possessed by the homologous compound disclosed in the prior art.” Id. The general principle behind the court’s decision was that chemical and physical properties vary only slightly between members of a homologous series. Id. The Henze case transformed this principle into a presumption that was rebuttable if the applicant showed “that the claimed compound possesses unobvious or unexpected beneficial properties not actually possessed by the prior art homologues.” In re Henze, 181 F.2d at 201. Clearly both courts perceived chemical structure and chemical properties as two different considerations. Therefore, for structurally similar chemical homologues, a new compound was deemed prima facie obvious because a chemist could expect or predict that the new chemical compound would have the same properties in a given system as did a similar prior art compound.

B. Inseparable structure and its properties

After section 103 was enacted, courts gradually moved to a more holistic view of chemical compounds that considered chemical properties in addition to chemical structures. In re Papesch, 315 F.2d 381 (C.C.P.A. 1971). In ­Papesch, an applicant claimed a family of compounds including representative compound 2,4,6-triethylpyrazolo(4,3-d)-4,5,6,7-tetrahydropyrimidine-5,7-dione (ethyl = CH2CH3), which was admittedly “structurally obvious” in light of a claimed compound 2,4,6-trimethylpyrazolo(4,3-d)-4,5,6.7-tetrahydropyrimidine-5,7-dione (methyl = CH3) as shown in Scheme 3. Id. at 384. Comparative tests of the trimethyl compound and the applicant’s triethyl compound showed that the latter was an active anti-inflammatory agent while the prior art compound was completely inactive for that utility. The Papesch court stated that the properties of compounds were relevant to obviousness, emphasizing that the invention as a whole was a compound with its own properties. Id. at 390. Additionally, the court found that proof of non-obvious or unexpectedly advantageous properties not shared by the prior art compound may rebut a prima facie case of obviousness. Id. at 391.

A compound and all of its properties are inseparable; they are one and the same thing …. But a formula is not a compound and while it may serve in a claim to identity what is being patented, as the metes and bounds of a deed identify a plot of land, the thing that is patented is not the formula but the compound identified by it. And the patentability of the thing does not depend on the similarity of its formula to that of another compound but of the similarity of the former compound to the latter. There is no basis in law for ignoring any property in making such a comparison. Id.

Thus the court generously encouraged chemical patent applications as long as a claimed invention could demonstrate new properties even though the claimed compound shared a similar structure with a prior art compound. The Papesch court, however, did not deal with the requirements for establishing a prima facie case of obviousness. The court only held that, for cases with a presumption of obviousness, an examiner had to consider both the properties of the invention and the structural similarity. Id.

Michael Guth is a legal editor who helps polish legal drafting by other attorneys. While in law school, he won an award for having the best brief written by a first-year law school student. He can be reached through the email link on web page http://michaelguth.com

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Trasylol Kidney Failure

A recent study based on observations at 69 leading cardiac centers around the world was published regarding Bayer Pharmaceutical’s heart surgery drug Trasylol. Kidney failure, heart failure, and stroke are side effects associated with Trasylol heart surgery patients according to the study published by Mangano et al. in January 2006 in the New England Journal of Medicine (NEJM). Each year approximately one million patients undergo surgery following a heart attack. The majority of patients who are at increased risk of bleeding during surgery have the option of one of three antifibrinolytic drugs to limit blood loss: Trasylol (Aprotinin), Amicar (aminocaproic acid), or Cyklokapron (tranexamic acid). These drugs work by inactivating an enzyme called plasmin so it stops from breaking down blood clots which helps prevent bleeding.

The observational study published in the (NEJM) raised significant concerns regarding the safety of Trasylol. The study revealed that Trasylol doubled the risk of kidney failure along with other serious side effects including stroke and heart attack. Trasylol has been on the market for use in cardiac surgery since its approval in 1993. It is estimated that as many as 10,000 patients may be on kidney dialysis due to Trasylol. Kidney failure was not associated with the less costly generic drugs aminocaproic acid and tranexamic acid according to the study.

The FDA has approved revised labeling for Trasylol following a review of safety information. On September 21, 2006, the FDA held a public meeting of the Cardiovascular and Renal Drugs Advisory Committee to discuss the safety of Trasylol. The Trasylol labeling changes are based upon the recommendations of that advisory committee. The new label states that Trasylol should only be administered to patients who are at an increased risk for blood loss during heart surgery. The label changes include a warning that Trasylol increases the risk for kidney damage. The costs associated with patients suffering from Trasylol kidney failure are significant. Average annual dialysis costs per patients are over $66,000.

Dialysis is a type of renal replacement therapy which acts as an artificial kidney for patients who have lost kidney function due to renal failure. There are two primary types of kidney dialysis treatment: hemodialysis and peritoneal dialysis. The overwhelming majority of dialysis patients receive hemodialysis where the blood is circulated outside the body through a hemodialyzer, cleaned and then returned to the patient. Hemodialysis treatments are typically performed three times per week, with each session lasting 3 to 5 hours. Dialysis involves substantial cost, whether it is hemodialysis or peritoneal dialysis.

On September 29, 2006, the FDA announced that Bayer had informed the agency of an additional Trasylol study. The result of the study suggests that in addition to serious kidney damage, Trasylol may also increase the risk of death, strokes, and congestive heart failure. It is estimated that the replacement of Trasylol with the generic drug aminocaproic acid would prevent kidney failure and related dialysis treatment in 11,050 patients per year saving more than $1 billion per year. Replacement of Trasylol with the generic drug tranexamic acid would prevent 9790 renal complications requiring dialysis each year with similar annual savings.

Trasylol kidney failure is a serious side effect that requires further study and may result in additional labeling changes. Mangano et al., in their January 26, 2006 study, suggest that given the serious risk of kidney damage and other side effects continued Trasylol use is not recommended due to the availability of less expensive generic drugs that are not associated with serious cerebrovascular events and renal dysfunction.

Steve Fields

Trasylol Kidney Failure For more information please visit minnesotatrasylolattorney.com

Steve Fields is a Minneapolis, Minnesota attorney representing clients with serious injuries including car accidents, medical malpractice and pharmaceutical litigation.

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Before Declaring Your Disabled Child Incompetent: Four Alternatives to Guard..

Before parents decide whether their child with a disability needs some type of guardian, they should consider the alternatives to guardianship. These include special needs trusts, representative payees, and citizen advocates. Special Needs Trusts

Special Needs Trusts are a highly recommended alternative to a guardian of the estate. Special needs trusts accomplish the same objective as the guardian of the estate, management of the assets of a person with a disability.

However, special needs trust offers several advantages as compared to guardians of the estate.

Chief among the advantages is a solution to the resource problems that might jeopardize the person’s eligibility for governmental aid. To be eligible for many governmental benefits such as Supplemental Security Income and Medicaid, the person with a disability’s total assets cannot exceed certain stated maximum amounts (often just $2,000).

However, amounts held for the person with a disability in properly drafted special needs trusts do not count as the person’s assets for these purposes, while amounts managed for the person with a disability by a guardian of the estate are considered assets of the person with a disability.

Accordingly, if parents think their child with a disability may require government benefits after their death, it is better to leave money in a special needs trust for their child than to have a guardian of the estate appointed and leave money to their child outright.

Special needs trusts offer other advantages over guardians of the estate as well.

In order to secure proper financial management, it is not necessary to declare the person who has a disability incompetent. There is no need for the constant, detailed reports that a guardian of the estate must submit to the court. It is not necessary to get approval from the court for expenditures on behalf of the person. The posting of a bond is not required. (However, with a professional trustee there will be management fees.)

The trustee will also have greater flexibility in investing than a guardian of the estate, and parents can select a trustee without the approval of the court.

The trust document containing the duties of the trustee can be written to include all the preferences of the parents. While family objectives will vary, normally a special needs trust is a better alternative than a guardian of the estate.

Representative Payee

A representative payee is a person or organization authorized to cash and manage public assistance checks such as Supplementary Security Income and Social Security for a person considered incapable of managing the money.

The payee is appointed by the agency administering the funds. If the parents want a particular representative payee selected, they must notify the agency. If the representative payee is not a relative, service fees may be required.

The representative payee must keep an accurate record of all expenditures made on behalf of the person with a disability. The representative payee can be an alternative to a guardian of the estate when the only money the person with a disability receives is from the government or from a trust.

Advocacy

An advocate is like a guardian of the person, but without court authority or oversight.

The advocate looks out for the interests of a person with a disability and provides personal attention, guidance, and representation. An advocate can be either a friend or relative of the person with a disability or a staff professional of a mental health agency.

Some mental health agencies advocate or lobby for laws that will benefit people with disabilities as a group, while other agencies lobby for individuals and their families.

Agencies that advocate for the individual can be helpful in advising the person with a disability and the person’s family concerning services in the local area. Increasingly, private, nonprofit agencies are being created to provide individual advocacy support.

The advocate can help the person with a disability on almost any matter. However, unlike a guardian, the advocate cannot legally make decisions for the person. For instance, the advocate would be unable to contract for the person with a disability, invest money without consent, or sign a medical consent-to-treatment form.

Power of Attorney

A power of attorney is a written document by which a person (the principal) authorizes another person (the agent) to act on the principal’s behalf.

The power of attorney is a simple document to draft and can be written for almost any situation in which the agent acts on behalf of the principal, such as buying and selling goods or contracting with third persons.

In limited circumstances, a power of attorney can be an appropriate method for acting on behalf of a person with a mild mental disability who does not need a guardian. For instance, many parents of a child with a disability hold a power of attorney to fill out and submit tax returns to the IRS.

The powers of the agent are limited to those specified in the document. For the power of attorney to be effective, the person granting the power (the person with a disability) must understand its nature and purpose.

Attorney L. Mark Russell has advised hundreds of parents who have a child with a disability. Arm yourself with time tested strategies that will protect your child and assure their happy and fulfilled life. There’s still time to plan for your child’s future IF you begin now by going to http://www.specialneedslegal.com

Copyright (c) 2007 L. Mark Russell

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Divorce and Custody Evaluations

In most cases where the parents are unable to agree on custody, the court will require a custody evaluation performed. This may be carried out by county social workers, psychologists or a Guardian Ad Litem. A Guardian Ad Litem is a person that is appointed by the Court to represent the interests of a person who is unable to do so for themselves. In the context of a custody case, the Guardian Ad Litem acts as a spokesperson regarding what the Guardian believes is in the child’s best interests. REPORTS

The person performing the evaluation will investigate the facts and generate a report that is provided to the Court. The report will usually include a summary of the investigation, an analysis of the custody factors set out in your state’s Statutes and a conclusion regarding what is in the child(ren)’s best interests.

THE USE OF CUSTODY EVALUATIONS

The Court is not required to adopt the recommendations of a custody evaluator. However, in most custody cases, the parties have very polar positions regarding the facts. This often boils down to a “He Said – She Said” Situation at trial. Where the evaluation was performed by a person appointed by the Court, the evaluator is considered a neutral party and their recommendation may hold considerable weight with a Judge who must weigh conflicting testimony. To combat an unfavorable custody report, your attorney will try to point out the deficiencies of the investigation performed and facts that may have been overlooked by the evaluator. It is may also be necessary to hire your own expert to conduct a separate custody evaluation and present a different recommendation at trial.

POWERS OF THE EVALUATOR

The custody evaluator often has broad power and may require the parties to provide releases of information for counseling, medical or psychological records. The evaluator may also require psychological testing, chemical dependency evaluations or random urinalysis tests as part of the investigation process. This is particularly true when one parent raises concerns about the other parent’s chemical dependency or emotional stability.

CUSTODY STUDY ELEMENTS

Although each custody evaluator may have a slightly different approach to performing custody evaluations there are some things you should expect :

Initial Interview with Evaluator.

At the initial interview, the evaluator will discuss at length the past history of care with the child. The evaluator will attempt to determine who was the primary caretaker. BE PREPARED! At the initial interview arrive prepared with a chronology of events clearly set out.

Home Visit(s).

The evaluator will make at least one home visit to watch you interact with your child(ren). The evaluator is watching to see:

Whether you actively play with and interact with your child;

Whether you set appropriate boundaries for the child and whether the child obeys those boundaries;

Discipline used

Child’s reaction to the parent:

Condition of the home environment.

Collateral Contacts.

The evaluator will ask for a list of persons that you think the evaluator should contact. Family members are usually not good contact since they may be biased in your favor. Where possible use independent contacts such as counselors, daycare providers, and school teachers.

Alcohol Assessments.

Where there are allegations of alcohol or drug abuse, the evaluator may refer you to a counselor for a chemical dependency evaluation. It is important that you cooperate in that process.

Psychological Evaluations.

Where there are allegations of emotional or anger problems, the evaluator may refer you to a counselor or psychologist for a psychological evaluation. It is important that you cooperate in that process. Make sure that you communicate with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required. A failure to cooperate will appear in the evaluation.

INTERACTING WITH THE EVALUATOR

How you interact with the custody evaluator may be a critical element of your custody case.

T Custody evaluators will oftentimes make you believe that they agree with your side of the case. This is done so that you drop your guard. Never assume that the evaluator’s report will favor your position.

T Custody evaluators are also people. That means they react to personalities. You are best able to present your case to an evaluator if you appear open and honest.

T Do not argue with the evaluator. Make eye contact and listen when they speak. This establishes a connection. It may help to nod your head as they speak even if you disagree with what they are saying. When you disagree, tell them “I see your point, but…” or agree first “I agree, but would you consider this to be important….”

T The custody evaluator does not care about good guys and bad guys. The evaluator cares about what is in the “best interests of the child(ren).” To relate your case to the evaluator, you must speak his/her language. Your statements must relate in some way to what is best for the child not the parent. For example, the statement, “my husband drinks too much”, is incomplete. It does not relate how the drinking affects the child(ren). Always relate how the conduct affects the child(ren). A better statement would be:

“My husband drinks too much. Because of that, he is rarely home and when he is, he is:…. abusive….spends little quality time with the children….is unable to help the kids with their homework….”

T Provide the evaluator with the documents supporting your statements.

T Provide the evaluator with the names of collateral contacts, people who are aware of your strong points as a parent and the other party’s weak points. (It is usually better not to include relatives as part of your contacts since they may have a bias).

T ALWAYS ASSUME when you go to court or visit a custody evaluator that you may be ordered to provide a urine sample for testing to determine if you have used drugs or alcohol.

PRESENTING YOUR CASE TO THE EVALUATOR

Remember, there are six magic words in custody evaluations.- “Best Interests of the Minor Child”. Custody evaluators listen for issues that relate to that phrase. You should relate how each of your proposals is beneficial to your child(ren). Wherever possible use phrases that mean “best interest of the minor child” without using those exact words. Using the exact words sounds too legalistic and prepared. Your statements should sound more natural.

There are certain things that evaluators look for in their custody evaluation. You should discuss these issues with the evaluator truthfully since the evaluator will, to a degree, assess your credibility. The issues you should be prepared to raise are the following:

Primary Caretaker.

Where has the child lived since birth? What was the extent of contact each parent had at each phase of the child’s life? What responsibilities did each parent have?

The best way to support the contention that you provided care for the minor child is through independent documentation. The other parent will no doubt contradict your assertions that you provided much of the care. Independent documentation may include:

Daycare or school records demonstrating drop off and pick ups or attendance at parent-teacher conferences. Even if you do not have documents demonstrating attendance at school functions at least verify the dates of the conferences and familiarize yourself with the daycare provider’s or teacher’s names. The more information you are able to provide in that regard the more credible you will appear as an active parent.

Medical records may document which parent brought the child in for a medical or dental appointment. If you can acquire these records prior to meeting with the evaluator, do so.

Homework assignments or report cards may require a parental signature before they are submitted at school. That signature may provide independent verification that the parent reviewed or was actively involved in the child’s schooling. Wherever possible acquire and retain these documents. Provide them to the custody evaluator to support your claims that you were actively involved in the child(ren)’s schooling.

Be able to relate who the child(ren)’s friends are and what activities they enjoy in detail.

Stability.

The evaluator will be interested in which parent is able to provide the greater stability for the child. Stability includes a stable residence and a stable job. You may wish to document the ways in which you have provided greater stability in the past. You obviously will not emphasize those areas that do not favor you.

To effectively present the areas where you have provided or are able to provide more stability, you may wish to create a detailed charts. Visual aids help to present a clear picture to the evaluator. For example you may wish to create a chronological chart regarding each parent’s residence and how many times the child has changed residences or schools. You may also wish to create a summary of each parent’s employment to demonstrate stable financial circumstances. Independent verification is also very helpful. Where possible, you may wish to procure documents demonstrating residence changes such as leases, purchase agreements or real estate taxes.

Endangerment or Neglect.

If you are raising issues of endangerment you must relate specific incidents. Endangerment may be physical, emotional or developmental. A calendar may be helpful to document the dates of the incidents. Documentation can carry critical weight with this type of allegation. Documents may include:

Medical reports documenting injuries from abuse or lack of supervision;

Medical reports documenting complications because of neglect – health issues such as asthma from cigarettes smoke or lice from lack of hygiene;

Police reports relating to police calls to the other parent’s home;

Child protection reports;

Counseling records for the child or the parent;

Criminal or driving record of the other parent;

Criminal or driving record of individuals that have significant contact with the minor child(ren);

School records may document attendance problems, school performance problems, counseling issues or erratic child behavior while in the other parent’s care or after returning from the other parent’s care.

REMEMBER: Endangerment only exists if you tie the other parent’s conduct into the child’s care and the child’s best interests. For example, if you allege the other parent has an alcohol problem. It only will be effective if you can relate specific incidents where the alcohol use or abuse affected the minor child(ren). (eg. The parent passed out on the couch while the child played unsupervised. The parent drove the child in the car while intoxicated. The parent was out partying consistently while the child was be cared for by a stranger.)

Parenting Plan.

The custody evaluator will want to know what your proposal is for parenting. You should be prepared with research, facts and answers. You may wish to write out your answers to the following questions so that your response seems thought out. Do not over prepare, your response should not sound mechanical. The answers should include:

Where will the child live? Why is that in the child’s best interests?

What school will the child attend? Why is that in the child’s best interests?

What will your work schedule be?

Will that allow you sufficient time to supervise the child?

What schedule do you propose for the other parents?

How does that schedule provide stability?

Why is that schedule in the child’s best interests?

(Remember: The custody evaluator is also looking at which parent is more likely to facilitate contact with the other parent. If you appear to be an unreasonable obstructionist with regard to the other parent’s contact, it may be used against you.)

PARENTING NOTEBOOKS.

In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your child(ren). What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party’s parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.

AUTHOR: Maury D. Beaulier is a recognized leader in divorce and family law in Minnesota and Wisconsin. He can be located on his web site at http://www.divorceprofessionals.com or by calling (612) 240-8005.

DISCLAIMER: Laws are constantly changing. As a result article information may become outdated. It is always important to consult with a lawyer in your state.

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Federal Disability Retirement And The Agency Cover Of Accommodation

“A man who acts without knowledge is a man who merely acts.” — From “Compendium of Sage Verses” I am receiving too many phone calls from people who have been fooled by his/her Agency that they have been “accommodated”, and therefore they cannot file for disability retirement. From Federal Workers at all levels who are told that they can take LWOP when they are unable to work, to Postal Workers who are given “Limited-Duty Assignments” — all need to be clear that your are NOT BEING ACCOMMODATED, AND THEREFORE YOU HAVE A RIGHT TO FILE FOR DISABILITY RETIREMENT. Let me clarify this issue by first discussing the important case-law of Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001). Bracey was, and still is, a landmark decision — one of those cases that pushed back the attempt by the Office of Personnel Management to create a broad definition of what “accommodation” means, and thereby try and undermine a Federal and/or Postal Employees’ right to disability retirement.

5 U.S.C. 8337(a) states that a disabled employee is eligible for disability retirement unless the employee is able to render “useful and efficient service in the employee’s position”, or is qualified for reassignment to an existing vacant position in the agency at the same grade or level. What this basically means is that, if you have a medical condition and you cannot do one or more of the essential elements of your job, you are entitled to disability retirement unless your Agency can (a) do something so that you can continue to work in your job, or (b) reassign you to an existing vacant position at the same pay or grade (all of those words are key to understanding the Bracey decision). As to the first issue, if your medical condition, either physical or psychiatric, is impacting your ability to perform the key functions of your job (in other words, “useful and efficient service” means that you must be able to perform the “critical or essential” elements of your position), then it means that you are eligible for disability retirement — unless the Agency can reassign you to an existing vacant position (the second issue). As to the second issue, what the Court in Bracey meant is that there has to be an actual position existing, which is vacant, to which a person can be reassigned and slotted into, at the same pay or grade.

In Bracey, the Office of Personnel Management was trying to have it both ways: they argued that (a) an individual is “accommodated” if he can do his “job”, and the “job” which the Agency was having Mr. Bracey do was a “light-duty” job that was made up by the Agency. As a result, the Office of Personnel Management had denied Mr. Bracey’s application for disability retirement, and the case reached the Merit Systems Protection Board, and then to the U.S. Court of Appeals for the Federal Circuit on appeal. More recently, Agencies have been trying to convince Federal workers that they can take “Leave Without Pay” and work less hours; or revert to part-time status; or perform some other functions — and this constitutes an “accommodation”. Or, in the case of Postal Workers, especially those who have intersecting OWCP issues, one is often told that “Limited-Duty Assignments” constitute an “accommodation”. However, for the latter, it is important to review such assignments — does it include jobs from another craft? Are you offered a new “Limited Duty Assignment” each year, or every two years (which would imply that it is not a permanent assignment)? Can a new supervisor or Postmaster come in tomorrow and declare that there are no longer any “Limited Duty Assignments” available (which is often the case)?

Remember that a “position” in the federal employment system is “required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it. The ‘resulting position-classification’ system is ‘used in all phases of personnel administration’. 5 U.S.C. 5101(2)” (Bracey at page 1359). It cannot be a position “consisting of a set of ungraded, unclassified duties that have been assigned to an employee who cannot perform the duties of his official position.” Id.

Similarly, for Postal employees, you cannot be slotted in your craft position, but then be given duties crossing over from other crafts; and you cannot be told that you have been slotted into an already existing “vacant” position, but then be offered the same “Limited-Duty” position a year later. If it was truly a permanent “vacant” position, why would you be offered the same position a year later?

Remember that under 5 C.F.R. Section 831.502(b)(7), an offered position must be, among other things, of the same tenure as the position from which the employee seeks disability retirement. “Tenure” is defined at 5 C.F.R. Section 210.102(b)(17) as “the period of time an employee may reasonably expect to serve under his current appointment.”

If you are a Federal or Postal employee, and you find this discussion about the Bracey decision to be somewhat confusing, do not let the complexity of disability retirement laws keep you from inquiring about your eligibility. In its simplest form, disability retirement is about 2 issues: Are you able to perform the essential elements of your job? If not, Can your Agency slot you into an already-existing position at the same pay, grade and tenure, and not just in some “made up” position that hasn’t been graded and classified”? If your answer is “No” to both questions, then you are entitled to disability retirement benefits.

As true with all things in life, it is always better to affirmatively act with knowledge, especially knowledge of the law. Like the Tibetan proverb, to act without knowledge of the law is to act blindly. To fail to act, or to allow your circumstances to control your destiny, is to allow your Federal Agency or the U.S. Postal Service to dictate your future for you. If you are disabled, and unable to perform the critical elements of your job, then you should consider the option of disability retirement. Opting for disability retirement does not mean that you can no longer be productive in society in some other capacity; indeed, you are allowed to receive a disability annuity and go out and get another job, and make up to 80% of what your position currently pays. Opting for disability retirement merely means that you have a medical condition which is no longer a good “fit” for the type of job you currently have. My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at DisabilityAtty@msn.com, or visit my website at www.Federaldisabilitylawyer.com

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Defamation And Slander On The Internet

As social networking sites and internet blogs continue to increase in both popularity and use, the opportunities for defamatory and libelous actions increase proportionally. Defamation, sometimes called “defamation of character”, is spoken or written words that falsely and negatively reflect on a living person’s reputation. Slander is generally spoken defamation, while ‘libel’ is written. Blogs or social networks in which defamatory statements are written or recorded present several potential sources of liability and recovery for the person whose character was defamed. In cases where the defamation is proved, damages are presumed and often enforced with liberality.

Operators of blogs are generally immune from liability for defamatory statements posted on their websites, as long as they did not contribute to the posting. In 2003, the Ninth Circuit Court of Appeals ruled that a listserv moderator and operator of a website which allegedly published defamatory statements provided by a third party was eligible for immunity under the Communications Decency Act (CDA). Batzel v. Smith, 2003 US App.LEXIS 12736 (9th Cir. 2003). However, if the online service provider plays an active role in soliciting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA. In Carafano v. Metrosplash.com, Inc., a federal court ruled on the application of the safe harbor of the Communications Decency Act (CDA). The defendant in that case operated a matchmaking website known matchmaker.com. As part of its service, the defendant collected profiles of singles based on an extensive questionnaire. The plaintiff sued Metrosplash because of a false profile of her which an unknown user had posted to the website. The court ruled that by creating the extensive questionnaire, Metrosplash played an active role in developing the information that had been posted. Furthermore, the court ruled that Metrosplash was an information content provider and thus not eligible for the CDA’s safe harbor provided to “interactive computer services.” Carafano v. Metrosplash.com, Inc., Case No. CV 01-0018 DT (CWx) C.D. Cal. 2002) (subsequently reversed by appeals court). While operators of blogs and services are generally immune from such liability, the more active the service is with its member’s, the greater the likelihood of potential liability as a publisher of defamatory materials.

Another potential source of liability is the person who actually posted the defamatory materials. As with more general defamatory statements or materials, a poster can be held personally liable for anything posted which reflects falsely and negatively on a living person’s reputation. Posting false and explicit claims regarding a person will generally be held as defamatory for purposes of liability. However, other issues arise concerning the anonymity of the person posting the information, and if known, the jurisdiction in which they are subject.

Jurisdictional issues may arise in situations where the poster had no reason to expect that the effect of the posting would be felt in a certain jurisdiction. However, in defamation cases jurisdictional disputes are liberally ruled upon in favor of the victim. In Griffis v. Luban, the Minnesota court of appeals ruled that Alabama had jurisdiction over a Minnesota defendant who posted defamatory messages on the Internet. The defendant repeatedly posted messages on an Internet newsgroup attacking the plaintiff’s professional credentials. The plaintiff initially obtained a $25,000.00 default judgment in Alabama, which she was seeking to enforce in Minnesota. The Minnesota court ruled that the Alabama court had properly exercised jurisdiction because the effects of the messages were felt in Alabama and that the defendant should have expected that she would be sued there. An important factor in the ruling was that she had actual knowledge of the effect of the defamatory statements on the Defendant. Therefore, the Minnesota court enforced the $25,000.00 default judgment. Griffis v. Luban, 633 N.W. 2d 548 (Minn Ct. App. 2001).

However, there are cases where courts have refused to allow the exercise of personal jurisdiction based on defamatory statements. In a Pennsylvania case, the court refused to exercise jurisdiction over a New York defendant who had posted defamatory comments about a defendant on an offshore betting website. The court held that since the comments were not specifically directed at Pennsylvania, the court could not exercise personal jurisdiction over the defendant. English Sports Betting, Inc. v. Tostigan, C.A. No. 01-2202 (E.D. Pa. 2002).

The problems with bringing defamatory actions based on internet postings largely lie in proving that the defendant actually made the posting. If that connection can be made, a much stronger case can be presented and jurisdictional issues can be tackled. An attorney who is experienced in cyberlaw and internet cases can improve your chances in prevailing in any such case. Without the help of an attorney who can find and connect the evidence, most internet defamation cases will fail for lack of evidentiary sources and experience.

This article was written by Nick Delaunt, for the Law firm of Goldstein and Clegg, LLC, a law firm representing clients in online defamation actions.

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How Private Are Your Documents?

The modern day law office relies substantially on the computer system and the network upon which it operates. Document creation, modification and retention is inextricably tied to the office computer system, and often left vulnerable to theft or piracy via that firm’s open internet connection. As the power and potential of the internet expands, the threats to personal and document privacy increase proportionally. Whether you run a corporate office, a law firm or a small business, the secure protection of your private documents will often represent the difference between victory and loss in a law suit.

A consistently open internet connection can act as an entryway through which various types of hackers or accidental searchers may access and leak confidential information. Failure to safely secure documents and implement efficient policies aimed at overall network and computer protection, can not only lead to the leaking of personal and confidential information, it may often times be used as evidence in a law suit. This reality is compounded by the recently passed amendments to the Federal Rules of Civil Procedure regarding electronic discovery of documents in legal actions. The electronic discovery rules establish a preference toward the discovery of electronic documentation, which will include the trail of metadata that each document modification leaves behind.

Due to the recently passed electronic discovery rules, discovery of electronic information is presumably valid and accepted. Due to this new development in the discovery patterns of adversaries, information and documentation which was once thought to be private and confidential may now be disclosed, often unintentionally through the disclosure of electronic information. A well trained IT department can find embedded information and evidence in disclosed information that was never meant to be disclosed. Such dangers not only subject the company or firm to unintentional disclosure of private information, but may also subject them to personal liability if the information inadvertently disclosed detrimentally impacts a third party whose information was supposedly confidential.

Ordinarily, edits made to a document, while not apparent on the computer screen, are embedded in the document itself and can easily be obtained by a trained IT professional. These changes are recorded as metadata. In respect to document edits, one step that can be taken while using Microsoft Word programs is to render a document as a ‘protected document.’ To do so, it is necessary to go to the Tools menu and select ‘protect document’ prior to sending it to anyone else for edits. When you choose to protect a document, the only modifications that can be made to it are Comments and Tracked Changes. These modifications do not become part of the document until you choose to ‘unprotect’ it and modify the document yourself. This method therefore allows you to ask your reviewers to make comments directly in the Microsoft Word document you send them. This tactic can not ensure against all metadata trails, it is but one method and system which can be employed to help reduce risks. In order to mitigate the risks inevitably faced with the continued expansion of internet use and electronic commerce, combined with the more lenient electronic discovery rules, all types of companies must institute protectionist documentation policy.

While risk of confidential disclosure can never be completely eliminated, the key to implementing the optimally effective system is to find a balance that allows for an efficient managing of the risk. Secure and safe document production, storage, and disposal systems should be used by all firms and companies to help reduce exposure and protect private and confidential information from both legal adversaries and malicious hackers. In addition, an effective legal review system should be used to help determine the status of certain forms of documentation, in order to categorize said documentation as privileged or non-privileged information. Obtaining the assistance of a law firm or attorney experienced in dealing with privacy, document retention and production issues can help ensure a company’s protection into the future, and is invaluable in the event of a pending law suit. An attorney with a clear understanding of relevant discovery rules and the emerging technology can serve as a key advisor in designing and determining the appropriate privacy protections contained within the ideal document protection system.

This article was drafted by Nicholas Delaunt for the Law Firm of Goldstein and Clegg, LLC. Goldstein and Clegg is a small business representation law firm in Beverly, Massachusett

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Personal Bankruptcy

The thought of personal bankruptcy is very frightening, however bankruptcy laws give an honest debtor a fresh start in life by relieving the debtor of most debts.
The thought of personal bankruptcy is very frightening, however over 5.4 per 1,000 people have filed for bankruptcy last year, and this rate has been growing at an average of nearly 7 percent. Researchers have determined that the primary cause of personal bankruptcy is uncontrollable levels of consumer debt oftentimes coupled with an unexpected event, such as a major medical expense not covered by insurance, the loss of a job, divorce or death of a spouse. According to economists’ surveys, the classic bankruptcy filer is a blue collar, high school graduate who is the head of a household in the lower middle-income class with heavy use of credit. In order to protect both debtor, and creditor, laws were enacted to provide equal, and fair measures to satisfy the objectives of all parties. The primary purpose of the laws of bankruptcy are: (1) to give an honest debtor a fresh start in life by relieving the debtor of most debts, and (2) to repay creditors in an orderly manner to the extent that the debtor has property available for payment.

There are two types of structured plans for filing for personal bankruptcy, Chapter 7 or Chapter 13. Over two-thirds of personal filers choose Chapter 7 bankruptcy. Basically Chapter 7 requires the debtor to liquidate all non-exempt assists, and have them distributed among creditors. Some examples of exempt assists include equity in a primary residence, and a retirement program. On the other hand, Chapter 13 does not require liquidation, rather a debtor agrees to a specific payment plan, whereby a portion of any unsecured debts is paid, and the balance is forgiven. It must be stressed, that under both plans, certain debts are ineligible for bankruptcy protection. These debts include government student loans, child support, alimony, and income tax debt. These must be paid back in full.

Some analysts are concerned that this unprecedented level of debt might pose a risk to the financial health of American households. In an attempt to reverse the increasing trend in personal bankruptcy, the federal government has recently implemented sweeping bankruptcy reform legislation. On March 10, 2005, the Senate passed S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. On April 20th, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Bankruptcy Act of 2005). This act makes filing for bankruptcy more difficult through income-means testing, tougher guidelines for the homestead exemptionPsychology Articles, increased lawyer liability and required credit counseling.

Jay B Stockman is a contributing editor for Online Bankruptcy Resources Visit http://online-bankruptcy-lawyer.com/ for more information.

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