Movie Friday

Gut wrenching, and based on actual events.
The Accused 

Ignorant Spouse, the Danger you Can't Afford

   A common thing I see in my practice, whether it be bankruptcy, divorce or probate work, is spouses who remain blissfully ignorant of their family finances.  Often, in a marriage one spouse takes charge of the money.  Usually the excuse is that he or she is better with money.  Here's the deal, if you're not good with money, become good with money.  It's imperative to know how much money comes in, and how much goes out, where the accounts are, when bills are due and to whom.
   I hear it so often, "I don't know how much my husband makes per year;" "I just hand my wife my paycheck, and she takes care of the bills, I
don't know how much we spend on food or taxes."  I could go on with a litany of scenarios where one spouse seems perfectly content to being in the dark.   Ultimately, you could find yourself sitting in the dark, because your electric service has been turned off, because the bill wasn't paid.  You realize that your spouse has been spending money set aside for household bills, on gambling, drugs, excessive spending, or a paramour.  Or you spouse dies suddenly, and you find yourself not only grieving, but completely unable to grasp your finances going forward without him or her.
  If you don't know how to balance a check book, learn, sit down with your spouse and make a budget, review your taxes yearly, sit with your tax preparer or accountant, become educated in your financial circumstances.  If you need to take a class, or sit down with a customer service agent at the bank, do it.  If you have the funds, hire a financial or business manager, who can give you a snapshot of your financial health at any time.
   Finally, if you meet with resistance from your spouse when you bring up the topic of money and household finances, push back, and don't take "no" for an answer.

NFL Hypocrisy--part 2

The NFL does not allow active players or coaches to endorse alcoholic beverages.  The policy has been in effect since 2008, since a string of alcohol related incidents "tarnished" the league.  So, in 2015, what do we get?

Temporary Restraining Orders and their abuse

    Domestic violence is a real and deadly issue in this country, and others.  For far too long women have suffered at the hands of their husbands and partners.  While men are victims of domestic violence in increasing numbers, women are the greater percentage of this type of abuse.  One out of every three women and one out of every four men have experienced some form physical violence.   The serious nature of abuse can never be minimized.
   Courts have systems in place whereby anyone can obtain a temporary restraining order against their spouse or partner, the order usually requires the abusive party to vacate a shared home and to cease all contact.  These orders can be the sole lifeline for someone facing abuse.  The trouble arises when these orders are sought and granted so that one party can get an upper hand in a divorce or custody case.  Attorneys will often use the tactic to intimidate a party, poison the judge assigned to their case or gain an advantage financially.
   One should never seek a protective order unless they have a real fear of imminent bodily harm, or that their children are in some kind of danger.  Placing a party in jeopardy of arrest, loss of job or reputation out of vindictiveness or spite only creates and atmosphere of anger, mistrust and multiplies the cost of any domestic relations action that may be filed.  Attorneys should question their clients at length when they are seeking a protective order.  Are there police reports?  Has there ever been a medical professional who has made note of bruising or injuries?  Are there independent witnesses who have seen acts of abuse.  I was advised early in my career, sadly that clients lie.  I was also told, "there is her side, his side, and somewhere in the middle is the truth."
   While some women or men do suffer ins silence, in this day and age of instant access and communication,  it's difficult to comprehend that a person with a job, a car, credit cards and multiple means of support could live year after year being abused and have not one person know it.  As an attorney we must be cynics, we must advocate zealously, but we cannot perpetuate a lie to gain an advantage.
 

Movie Friday

And Now for a Comedy

Guns and Personal Liabilty

    I have been a firm believer that change happens when insurance companies start to lose money.  The federal flood insurance program has been drastically amended in the wake of Hurricanes Katrina and Sandy.  The call for "Tort Reform" has been led by medical malpractice carriers who are adverse to paying out hefty sums for the negligence of their insured medical professionals.
   Gun violence is in the news nearly every day.  There have been reports of multiple deaths due to accidental and intentional discharge of firearms by children as young as five years old.   Approximately 110 children are killed  accidentally by guns every year.  If you add in those killed as a result of criminal conduct, deaths per year are in the 3000 range, injuries are in excess of 7000.  So, when an eight year old child gets his hands on his father's handgun, or shotgun and shoots someone, there should be claims filed against the gun owner's homeowner's liability policy, further to that end, anyone who owns a gun should have mandatory liability insurance.  Just as they must for any motor vehicle they own.
    Recently in California, three drifters stole a gun that was left in an unlocked motor vehicle, they robbed and murdered two people with that gun.  The gun owner should not only be held criminally responsible for failing to secure his firearm, but there should be a hefty payout to the families of the victims.  Once you mandate liability insurance for gun owners, the cost of gun ownership would likely make people think long and hard, and decide if the expense is worth it.
   Ultimately the goal is to keep guns out of the hands of criminals, criminals obtain guns by stealing them, using shills to purchase them, and other nefarious means.  If a gun that was improperly sold or secured is used in a crime, not only should the original owner face stiff criminal liability, insurance companies also need to have their feet put to the fire, and start to feel the pain financially of all the lives lost as a result of guns.

Some things are Worth Revisting

Movie Friday

Haunting, groundbreaking, heartbreaking.---Philadelphia

Criminalizing Addiction---Is it Ever the Answer?

   Addiction is a disease, imagine if our criminal justice system began incarcerating individuals because they suffer from heart disease, diabetes or cancer.  As a society, there is still a perception that addicts have a choice, that all they have to do is muster up some "willpower" and stop using drugs, or alcohol.  Anyone who has suffered with addiction, or knows someone who has, can attest, that it's not just about willpower.
   There is a growing trend to target pregnant women with criminal prosecution if they use drugs during their pregnancy.   The state of Tennessee passed a law in 2014, that allows for the prosecution and incarceration of pregnant women who use illegal narcotics. The law targets illicit drugs, not alcohol or prescription medications.  Studies have found, that although the law's purported intent is to get pregnant women to seek treatment, in fact, it is discouraging women from getting prenatal care, due to fear of prosecution.  The truth is Tennessee lacks sufficient resources to treat these women for their addiction.
   An Arkansas case recently decided, is a small step in the right direction.  In 2014 Melissa McCann-Arms was convicted of introducing a controlled substance into the body of another person after her newborn son tested positive for methamphetamine. The statute used to convict McCann-Arms was intended to deal with "date rape drugs."  The Arkansas Supreme Court overturned the conviction, along with a 20 year sentence.
  The criminal justice system has failed in every respect where it comes to addiction, when punitive measures are the only option.  Study after study have found that treatment prevents future arrests. Incarceration does not help the addict, it certainly cannot help a mother and child.  Placing a child in the foster system, which is underfunded, poorly supervised and for all intents and purposes is broken can never be the answer.
  Treat the disease, don't condemn a child to a life without a mother.

Put it in Writing---Yes, Even when it's your Kids!!!

    Family, it's the foundation of our lives.  We help our family members when they are in need.  Usually we help with no adverse consequence, however, sometimes things go awry, particularly when property and significant others are involved.  Recently I became aware of a situation where parents gave their son a significant sum of money which was used to buy a home with his girlfriend and the mother of his child.  At the time, the young "family" was residing with the parents, they were fight providing child care for their grandchild and everything was blissful, until it wasn't.
    After living together in the new house the unmarried couple fell apart.  An ugly custody  fight ensued, and now the parents are out a considerable sum of money, that will likely require more litigation.  These issues also arise when parents, siblings, friends or others provide a "gift" of a down payment, signing a gift letter for the mortgage company.  In the all to likely event of a divorce, one spouse will get the benefit of the gift when marital property is divided.  Of course the individual who made the gift becomes angry, and often tries to character the gift as a loan.  If it truly was a loan, then a fraud was committed at the time of closing.
   The simple solution to these and other conflicts is to never hand over money without reducing the transaction to writing.  A promissory note, a mortgage, exchange of collateral, a repayment plan all will go a long way to making everyone's rights and obligations clear, avoid unnecessary conflict and litigation down the line.

Movie Friday

With the publication of Harper Lee's Go Set a Watchman, I thought we could revisit a classic.

I thought we eliminated debtor's prison

   Criminal defendants are often required to pay fines as part of their punishment.  Sometimes defendant's agree to these fines in order to avoid trial, which can often lead to jail time.  Given that most of these defendants are poor, they often have court appointed counsel who are often overworked, ill prepared and push defendants to plead out.

   So, defendants are forced to agree to take a plea to avoid jail.  The problem arises when the defendant can't pay the fine.  Oftentimes they are imprisoned.  In some instances, they are given the opportunity to do "community service"  which in reality is forced labor.  

   Recently, the ACLU, filed suit against Benton County, Oregon.   The suit filed as a class action in Yakima County Superior Court, alleges that the practice violates the U.S. and state constitutions, which prohibit the jailing of people for not paying court-ordered fines, fees and costs without a meaningful hearing and consideration of alternatives to incarceration.

   The lawsuit,  is part of the long national campaign by the ACLU to combat the effect of court fines on poor defendants. In 2010, the organization published a report the examined the way court impose fines in Michigan, Ohio, Georgia, Louisiana and Washington state, noting that the fines can often compound with interest or late fees, contributing to the impoverishment of come defendants.

   While punishment is supposed to hurt, and defendants should be made to pay restitution, the system should not be used to circumvent due process, or be abused to make money for an otherwise strapped court system.

Another Black Eye for the NFL

   If you are a fan of the NFL, you may have noticed advertising for Fantasy Football leagues.  The NFL itself runs a league, you can play for fun and money.  For years, the NFL has claimed this is not a game of chance (gambling) but a game of skill.
   Most recently the NFL has partnered with FanDuel, a site that allows you to pick a team for only a week, and win money, depending on your upfront fee (bet).  Well, it appears FanDuel and its main competitor DraftKings (also an advertiser during NFL and other sporting events) may be nothing more than a scam.
   Recently, despite claims of millions of dollars in purses, it was revealed that the average payout is under $30.00.  Promises of millions are nothing but smoke and mirrors.  Now it was revealed that an employee had inadvertently released date that if used properly would increase a player's odds of winning, apparently, if your roster includes players that are not used by others, you win big  (potentially.)  The employee is barred from playing on his employer's site, however, he did play on his competitor's site, and won $350,000.
   The NFL promotes fantasy football because it increases ratings and thus ad revenue.  When Congress outlawed online gambling, the NFL lobbied heavily to carve out an exception for fantasy sports.  The original legislation did not have any such exception.
   The reality is, the NFL, MLB, and other professional sports leagues have been exceedingly schizophrenic when it comes to gambling.  The look at casinos as dens of iniquity, yet they accept billions of add revenue and entry fees from fantasy sports.  Let's stop claiming that fantasy sports requires skill,  Truth be told, no amount of skill can compensate for Tony Romo's broken clavicle, or CC Sabathia's trip to rehab.  Poker and black jack require the same amount of skill, and depend on chance.  You need to know how to bet, how to read other players and when to fold.  You can't control the cards, like a fantasy player can't control a coach's substitutions.  Some skill, but mostly luck is at play.
  All the while, professional leagues (and in the case of the NFL a not for profit one) rake in billions of dollars on the back of the guy locked in his basement, chasing the big score one more day.

Movie Friday

So, The Firm is a true legal thriller, Tom Cruise plays an idealistic new attorney who us recruited by a law firm in Tennessee, everything looks perfect in every way, until he starts to hear and read about other associates who have died under mysterious circumstances.  He approached by the FBI to provide evidence against The Firm.  Great performances by Cruise, Gene Hackman and Ed Harris keep you on the edge of your seat.

Even as an Adult, You should Still do Your Homework

   If you have an email address, a Facebook account, or any other web based method of communication, you undoubtedly have been forwarded "news" articles or stories purporting to be true.  Whether it's the story of President Obama refusing to salute the flag, or the most recent Facebook Hoax about your privacy, you are likely bombarded with claims about politicians, celebrities, regular folks and every possible entity.
   These typed of stories are usually intended to inflame, frighten or shock their audience.  Some may be used to solicit funds for a cause.  Social media allows the stories to spread like wildfire and because they often look "official" or are from a trusted source, they take on a life of their own, and in many respects become "true" in certain circles.  The current presidential campaign is wrought with lies, and rumors purported to be fact.
   Everyone has been fooled, at one time or another, it happens, however, the damage some of these hoaxes can do to the reputations of companies and individuals is real.  There are simple and quick ways to verify what you have been forwarded, before you perpetuate the lie.  Websites like Snopes, Factcheck, and Politifact scour the web and news sites for the latest hoaxes, rumors and claims.  They are not politically affiliated nor do they have any agendas other than spreading truth.
   So, the next time you open an email, or are shared something on Facebook, click on one of the above sites, and check it out.