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Archive for the month “December, 2019”

Finding Attorneys in Contempt for Clients’ Actions in Divorce Case

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do.

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do. The recent Pennsylvania Superior Court case of Farrell v. Farrell, No. 1424 WDA 2018 (Pa. Super), should serve as a cautionary tale for all attorneys to keep in mind when discerning how much involvement their clients should have in the drafting and serving of legal documents.

Farrell is a divorce matter that involved two represented parties, the husband and the wife. The husband initiated the divorce action against his wife who, for the first two years of the case, elected to proceed on a pro se basis. When it was time for the case to be advanced to a divorce master, the wife hired an attorney. In the months leading up to the divorce master’s hearing, the husband issued the wife informal discovery requests. The wife ignored the requests, which led to the husband issuing follow-up correspondence, to which, again, the wife provided no response. As a result, the husband filed a motion to compel the responses to the discovery requests. The trial court granted the motion, and gave the wife 20 days to comply with the discovery requests.

Instead of taking an active role in helping her client respond to the discovery requests, the wife’s attorney simply allowed her client to type up the responses herself, which the attorney then forwarded to the husband’s attorney, unedited. In her responses, the wife refused to disclose some information, declared some requests “N/A,” and leveled personal attacks upon the husband in others.

The wife’s pro se responses provoked the husband’s attorney to file a motion to compel, for sanctions and for attorney fees. The court scheduled a hearing on the husband’s motion three days after the responses were filed, as the master’s hearing was scheduled for four days after the responses were filed. As a response to the husband’s aforesaid motion, the wife’s attorney immediately filed her own motion to compel and for attorney fees.

At the motion hearing, the husband admitted that more documents were produced by the wife, but her responses were still inadequate. Furthermore, the wife’s attorney indicated that she had not prepared the discovery responses for the husband, but simply allowed her client to type up the responses where provided on her own. The court took note of when the wife filed her above-mentioned motion and found that it was filed for the sole purpose of trying to “equalize” the motion filed by the husband, and not for any actual legally cognizable purpose.

At the conclusion of the hearing, the trial court dismissed the wife’s motion and granted the husband’s motion, ordering that the wife may not produce any documentation not already produced in support of her own case. The court also found the wife’s attorney to be in contempt, ordering her to pay the husband’s attorney fees. The wife’s attorney filed for reconsideration and appealed this ruling to the Superior Court.

The wife’s attorney argued in both her motion for reconsideration and the appeal that she cannot be personally found in contempt as she was never actually ordered to do anything (only her client was) regarding discovery. To this end, she maintained that no evidence was ever produced demonstrating that she, personally, had any court order directing her to do anything, therefore there is no evidence that she disregarded a court’s order. She further argued that there was no evidence belonging to the wife that she had in her possession that was requested to be produced; therefore, she did not personally withhold anything from being produced in discovery.

As an initial matter, the Superior Court first noted that the wife’s attorney cited to no authority for the proposition that she cannot personally be held in contempt for her client’s actions or inactions. As a result, under established case law, her arguments, on that issue, were deemed waived as unsupported by authority.

Regardless, the court cited to Pa.R.C.P. 4019(g)(1) which states that “the court on a subsequent motion for sanctions may, if the motion is granted, require the … attorney advising such conduct … to pay the moving party the reasonable expenses, including attorney’s fees …”

Based on Pa.R.C.P. 4019(g)(1), the court determined that the wife’s attorney’s decisions to allow the wife to personally produce deficient and attacking discovery responses without the attorney offering any input or edits, did not comply with the trial court’s order to compel, and her filing of what appears to be a retaliatory motion to compel are all adequate grounds to hold the wife’s attorney in contempt of court.

So, while it is rare, practitioners should always be cognizant of the fact that they could be held in contempt of court for the actions of their clients, even if they were not personally directed by the attorney and there is no order directing the attorney to do anything.

James W. Cushing is a senior associate at the Law Office of Faye Riva Cohen and is a research attorney for Legal Research Inc.

Originally published in The Legal Intelligencer on December 16, 2019 and can be found here.

Yessource: Live in Tokyo, 4/19/17 (ARW)

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Templeton Project: Civil Blood Makes Civil Hands Unclean

Back in October 2015 I wrote about the inauguration of the Abington Templeton Foundation (see here).  The project is now underway (see here) and I will be posting our writing here.

Check out the latest piece entitled “Civil Blood Makes Civil Hands Unclean.”

See also:

_____________________________

Title of this article is found in the prologue to Romeo and Juliet by William Shakespeare.  Two young people who love one another are caught up in the strife between their families, the Capulets and Montagues.  These families represent the high level of civil conflict in the city of Verona.  We can imagine that a war of words had become a civil war.  The play opens with a sword fight in the streets of Verona between the retainers of the two families.

In the course of the play family members are killed. At the end of the play Romeo and Juliet too are dead as a result of the civil conflict.  One can imagine that a war of words led to the bloody conflict.  Civil blood had made civil hands unclean–hands that had wounded and slain.

It does not take a stretch of the imagination to envision such a thing happening within the American community.  It did once in the nineteenth century when hundreds of thousands American died on Civil War battlefields.  The prelude to the war was an intense word battle in the press, books, and debates.  Abusive names and inaccurate description of opponents abounded.  In 1856 Preston Brooks of North Carolina severely beat Charles Sumner of Massachusetts on the Senate floor.  Violent rhetoric can lead to physical violence as most everybody knows.

The contemporary political rhetoric in Washington and around the country has reached a strident level.  Last week’s exchange between Congress and the President on the subject of racism was futile and frivolous.  Nothing was accomplished.  Division was deepened; bad feeling was aggravated.  The country did not at all benefit. The President and the two parties both are blameworthy.

Violent language can easily lead to violent action.  Uncivil tongues eventually lead to the shedding of civil blood.  All who are responsible for this rhetoric, whatever the level of complicity, have potentially made their hands unclean with the blood of citizens.  Our politicians and media must take the primary blame.

The word civil refers to the community and also to proper conduct by word and action that helps the community thrive.  Shakespeare’s use of the word in his prologue to Romeo and Juliet is a reference to the citizens of Verona.

We will continue to encourage a Christian apologetics that sets an example of civil speech while at the same time making a strong defense of our faith.

Michael G. Tavella

July 22, 2019

St. Mary Magdalene

Yessource: 4/19/7 Yes/ARW Rehearsals in Tokyo (with Hornal on bass)

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here

Joe Arcieri Songs: 22

Joe Arcieri is a friend of mine who I worked with for many years during my ten years working for Acme Markets.  Joe, when not stocking milk or saving lives as a nurse, is an excellent guitar player.  I have had the privilege, from time to time, of (badly) plunking my bass guitar with Joe as he melts a face or two with a great solo.

As great musicians do, Joe has written some of his own songs and keeps a soundcloud site to post them.  When I have opportunity, I will post his music here as well.

Here is his composition called “22” which you can find here.

Here are the links to the previously posted songs by Joe:

Why Are We All Having So Little Sex?

By BELINDA LUSCOMBE

Matt, a 34-year-old data analyst from Texas, and his wife dated for seven years before getting married in 2013. When they didn’t live together, they had sex every time they saw each other. After they moved in, however, he says things changed. Their sex life became inconsistent. They’d have a really active week and then a month with nothing, or just one at-bat. It began to hurt their relationship. At one point early in their marriage, Matt’s wife got pregnant, but they weren’t sure the marriage was going to make it, so they terminated the pregnancy. Part of the problem for Matt, who spoke to TIME about his sex life on the condition his last name wouldn’t be printed, was that he didn’t know how to talk about sex with his wife.

If Matt’s story sounds familiar to you, you are not alone. Americans are not having sex. They’re not having sex in droves. According the General Social Survey, a profile of American behavior that has been gathered by the National Opinion Research Council at the University of Chicago since 1972, the fraction of people getting it on at least once a week fell from 45% in 2000 to 36% in 2016. One study of the GSS data showed that more than twice as many millennials were sexually inactive in their early 20s than the prior generation was. And the sharpest drop was the most recent, in the years 2014 to 2016.

The indicators of a falling bonk rate are everywhere. In 2016, 4% fewer condoms were sold than the year before, and they fell a further 3% in 2017. Teen sex, which is monitored by the Centers for Disease Control, is flat and has been on a downward trend since 1985. And the fertility rate—the frequency at which babies are added to the population—is at a level not seen since the Great Depression.

How can this be? After all, this is the era when we’ve finally torn down many barriers. The social stigma around premarital sex is gone, hookups are not considered shameful, and the belief in limiting partners to one side of the gender line is no longer universal. Our many forms of contraception have reduced the risk of serious physical consequences. There are a wealth of technological assists, including apps like Tinder to help willing partners find each other, endless free online porn to rev the engines, and the Dr. Fils—tadalafil (Cialis), vardenafil (Levitra), and sildenafil (Viagra) to overcome the most common physical limitations for men.

Yet the slump in pumping doesn’t seem to be a blip. Nearly 20% of 18- to 29-year-olds reported having no sex at all in 2016, an almost 50% rise over those who were celibate in 2000. “The downward trend is very real,” says Philip Cohen, a sociology professor at University of Maryland, College Park.

But married folks are falling down on the job too. “The number one issue that I deal with in my practice is discrepant libido and low libido and no libido,” says couples therapist Ian Kerner, author of the book She Comes First. Twenge’s study shows that the highest drop in sexual frequency has been among married people with higher levels of education. Counterintuitively, parents with kids younger than six had the same amount of sex as their forbears had, but those with offspring in the 6 to 17 age range were doing less of what made them parents. This may reflect the more child-centric family lives that people are leading and the stress of modern parenting. “We know there’s more parenting anxiety,” says Cohen. “That could be turning into generalized family anxiety.” Only the 60-somethings are bucking the trend—possibly partly with a little pharmaceutical help. Unlike the retirees who came before them, they’re putting the sex back in sexagenarian, with an average coital frequency that is slightly higher than in two decades earlier.

Moreover, many couples have perfectly good reasons for not having sex: they’re exhausted, they’re unwell, they have too much else to do, or the kids are in the bed with them.

In wealthier countries, a wider array of entertainment alternatives are even more likely to sneak into the bedroom. An online study of 1000 Americans commissioned by the bedmaker Saatva found that almost 40% of them bring some sort of internet-connected device to bed with them. About 60% of them browse the internet from bed and 24% of them have fallen asleep while doing so. And the more highly educated seem to be the worst offenders. The poll found that affluent Americans were more likely than Americans as a whole to fall asleep while using email, working or paying bills or finances, activities more likely to raise stress than libido. “Technology in the bedroom, unless it’s technology that’s being used in a kind of pro-sexual or sexual arousing way, can be a major deterrent to some of that kindling of sexual arousal that’s really necessary for desire,” says Dr. Lori Brotto, an obstetrics professor at the University of British Columbia and a sex therapist.

The trend for using beds for other activities beside sleeping and making whoopee is so robust that Saatva is marketing a bed that adjusts to the seated position to make such activities more comfortable—and sex less so. “We’re one of the few species that mate face to face,” says Sue Johnson, a Canadian psychotherapist and the developer of Emotionally Focused Therapy, a well-regarded couples counseling technique. “And face to face interactions seem to be going down everywhere. We turn to technology instead of to people. And that’s happening in sexuality just like everywhere else.” Indeed, the sex toy industry has been growing briskly, and is now worth about $15 billion annually. Astonishing numbers of hours of pornography are being consumed online. And VR porn is taking off.

One theory is that porn has become so easy to get—any smartphone owner with wi-fi and headphones is set—and the video quality so lifelike, that “busy people are retreating from the work it takes to have sex with another person,” says Mark Regnerus, an associate professor of Sociology, at University of Texas and the author of Cheap Sex, The Transformation of Men, Marriage, and Monogamy. “They think, O.K., this is close enough.” Pornhub, one of the popular sites, says its usage spikes between 10pm and 1am, times when people are bedding down next to their loved ones.

Another complicating factor is the changing conversation around consent and sexual advances, shaped by the #MeToo movement. Matt, along with several other struggling sexual partners interviewed as background for this story, expresses uncertainty about where the boundaries lie. “There was always the question in my mind, am I being unreasonable?” Matt says. “It’s not for me to determine how legitimate her excuses are. And I don’t want to do it if she’s not into it.” But he admits he’s also possibly overthinking it. “It’s probably a cultural thing, where there’s such a huge emphasis on consent and of course, there should be,” he says, “but it’s important to the point where I’m not even willing to question whether there is something wrong in the relationship.”

Brotto is part of a wave of researchers—many of them Canadian, since funding is hard to come by in the U.S.—looking into the complex issue of women’s sexuality, and particularly into low desire. One of the more alarming discoveries to emerge so far is the large number of women for whom sex is actually painful. “One in five young women 18 to 29 experience chronic pain during sex,” says Natalie Rosen, a psychologist and associate professor at Dalhousie University in Nova Scotia. Sometimes the discomfort goes away of its own accord, but only 60% of women seek treatment and, in a study released in 2017, Rosen found that a third of women never mentioned it to their partners because they were ashamed, felt inadequate or feared being dumped. “Or they end the relationship preemptively without telling their partner why,” says Rosen.

It’s a sharp contrast to the predominant image of youthful sex as a fun, easygoing hookup culture, and one that may have a ripple effect for women down the line, as sex becomes a source of anxiety instead of joy. “I worry about what that means for a lifetime of sexual difficulties,” says Brotto. “I think there’s much more work for us to do in that area.”

Gender dynamics are having an impact on one of the oldest and sturdiest reasons for abstinence: mates are not finding each other attractive. A controversial thesis was put forward in a 2012 paper in the American Sociological Review that looked at sexual frequency and chore distribution and noted that “households in which men do more traditionally male labor and women do more traditionally female labor report higher sexual frequency.” The secret to sexual chemistry, the study seemed to suggest, was for men and women to stay in their gender-stereotyped lanes. That conclusion makes sense to Regnerus. “The more alike men and women are at some level, the less interesting we become to each other,” he says. “We are interested in that which we are lacking. It sounds unenlightened, but similarity is not conducive to eros.”

There are other more prosaic reasons for desire discrepancy, the academic term for the unhappy situation in which one partner wants a lot more sex than the other. Some of them are hard to budge, from genetics to upbringing to hormonal changes to sexual history to general healthiness. The higher national rates of obesity are one likely libido-dampener, for example. It’s not just that obese men are more likely to be impotent. “There are health implications,” says Maryland’s Cohen, “and there is the social self-image, feeling attractive. I would suspect that could be an issue.”

Then there’s that other public health epidemic: depression. “What we see in every national probability study is that depression usually rises to the top as being one of the leading causes of low desire, specifically,” says Brotto. Treating depression can further hurt desire; many common medications for depression, such as SSRIs, are known to lower libido.

All of this, Twenge believes, may be leading to a generation of young people who are not interested in partnering up, who are moving away from pair bonding into the sexual equivalent of a gig economy. Instead of having a job or steady relationship, people have to find their own opportunities. “The theme that comes up over and over [among young people] is the increase in individualism,” says Twenge. “More focus on the self and less on social rules.” That would explain both the openness around sexuality and the drop in actual sex.

This was the key for Matt and his wife. “Sometimes there’s still a libido mismatch,” he says of his marriage now. “And not every week or month is perfect, but my wife and I have learned to communicate better, and we’ve both learned to listen better.” Things are going so well that they recently decided the time was right to try to start a family and in October they found out they were pregnant.

Originally published in Time on Octoer 26, 2018 and can be found here.

Yessource: 4/18/7 Yes/ARW Rehearsals in Tokyo (with Hornal on bass)

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

 

OUTSOURCING PRACTICE TIPS

Outsourcing is akin to hiring a professional outside of your law practice to help you achieve a goal within your law practice. Lawyers spend about six hours a day doing non-billable work and are constantly faced with the issue of how to provide high quality legal services while keeping overhead and expenses down. Using a legal support service enables attorneys to meet their goals.

The below recommendations draw upon my 45 years of experience as a practicing litigation attorney and my role as COO of Legal Research, Inc. a legal research and writing firm. I have confirmed my observations with others to ensure validity and consistency of thought.

A number of the following factors add up to the logical choice of “leasing” instead of “buying” lawyers so that flexibility of firm scheduling and growth can be enjoyed, instead of creating fixed costs and possible dismissal scenarios when work is reduced or disappears.

Despite years of economic growth, most people feel that our economy is unpredictable, or can become so, in a short time period. A bull market can quickly become a bear market, and it is easier to downsize if costs and personnel are not fixed.

Hiring a full-time attorney brings with it financial and other responsibilities, not to mention risks. A major risk, and now a commonplace risk, is that attorneys and other legal professionals are suing their firms or companies for discrimination of some sort or sexual harassment.

Many lawyers, including millennials, who are starting to assume leadership roles in their firms, also want more flexibility so that they can achieve work/life balance. Studies indicate that they are willing to accept a lesser salary for more free time or flexible schedules. Millennials may be the group that finally acknowledges that life does not consist of just piling on billable hours, and that if one does not enjoy working those hours, they must look to other things that deserve one’s time, attention and care.

I reviewed an article in which I was quoted in The Pennsylvania Lawyer in July 1994, (“Lawyer Temps – Here to Stay”). In the article I mentioned that firms were concerned about violating attorney/client privilege by the use of “temporary attorneys” and didn’t want other attorneys to know about their “secret weapons.” At least one of those issues has resolved itself, as states have addressed the use of outsourcing firms, and they have become part of the fabric of the law. The Pennsylvania Rules of Professional Conduct, Rule 1.2 (c), discuss these issues called limited-scope engagements.

Interestingly, it was only after employment agencies became involved in large-scale hiring of “contract” attorneys with the advent of increased discovery as cases grew ever-larger, that the hiring of temporary lawyers achieved greater legitimacy. Yet, the overburdened solo or small firm lawyer still hesitates to embrace the concept that can not only be a freeing experience to them, but can assist them in all matter of cases, from evaluation of a case to receiving help with researching the law, conducting discovery, drafting motions, briefs, and pleadings, and appearing at hearings, trials, or engaging in the appellate process.

When you feel overloaded, when there is a deadline looming you can’t meet, or an emergency matter arises, outsourcing services can free up your time and resources so that you can accomplish more or work on the more lucrative areas of your practice. Legal support services value client confidentiality, and work within the parameters set with regard to the type of work product desired, deadline, and amount of time and resources each project budget has. The attorney has total control and input into the process. Working within the budget and controlling the outcome help you accomplish more.

The many advantages of using a legal support service include:

  • Assistance in handling trials, arbitrations, court appearances and depositions
  • Attaining legal research and analysis to assist in pursuing cases more aggressively, or negotiate more favorable settlements by having the relevant case law at hand
  • Access to trained attorneys with practical and courtroom experience
  • Access to a library of research and sample court documents, including trial and appellate briefs, motions, petitions and pleadings
  • Paying for the services of a temporary attorney only as needed
  • For solos and small firms, the ability to secure the advice and guidance of other experienced attorneys outside of their usual circle of contacts

Now that you know the many ways outsourcing can assist you, please consider using a company that is experienced, trustworthy, and has excelled at legal research and writing for 45 years. So, please call Legal Research Inc. at 215-563-7776 or email Faye Riva Cohen, Esq. at frc@fayerivacohen.com to discuss assisting you with your research and writing needs.

By Faye Riva Cohen, Esquire and was originally published as a Pulse Post on Linkedin and can be found here.

Catholic School Principal’s Retaliatory Discharge Claim Dismissed

This is from religionclause.blogspot.com which you can find here:

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff’s firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach…. Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address … whether claims for common law retaliatory discharge are available to contractual employees.

You can learn more about this issue here.

Family Law Tip: Divorce After Death?

I  post some tips regarding family to my Linkedin page (see here) from time to time, and I thought I should start sharing them here too. Below is one of my family law tips, and you can read my articles on family law here and other posts on family law here and all are cataloged here.

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