A look at what happens in juvenile court.
"Juvenile justice" is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called "juveniles" or "minors") are accused of committing crimes. Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about "getting tough on crime," the conflicting opinions on how to deal with minors accused of crimes are greater still.
Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:
* detain and warn the minor against further violations, and then let the minor go free
* detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
* place the minor in custody and refer the case to a juvenile court.
If the police refer a case to the juvenile court, a prosecutor or a juvenile court "intake" officer (often a probation officer) must then decide whether to:
* dismiss the matter
* handle the matter informally, or
* "petition" the matter by filing formal charges.
In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. After this initial decision is made, procedures vary. What follows is a brief overview of how juvenile cases typically flow through the juvenile justice system:
* A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may initiate proceedings to remove the minor from the custody of his or her parents or guardians.
If the intake officer decides to proceed formally, he or she files a petition and the case is placed on the juvenile court's calendar. (In large cities, juvenile courts may handle over 300 cases each day.)
* The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile's personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a "fitness hearing."
At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
* If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an "adjudication").
* If, after trial, the juvenile court judge "sustains the petition" (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
* Post-disposition hearings may occur. For example, a judge's disposition order may require a minor to appear in court periodically so that the judge can monitor the minor's behavior.
http://www.criminal-attorney.info/lawyer-attorney-C0C031DB-8342-4315-877D3948BEC1546C.html
Friday, August 17, 2007
Where Our Criminal Procedures Come From
How federal and state constitutions, legislatures and courts protect the rights of criminal defendants.
The word "criminal" reflects our society's belief that certain acts are unacceptable and that people committing these acts should be punished. Because we place a high value on freedom, however, our state and federal constitutions make it very difficult for the government to take that freedom away from us. As a result -- and perhaps as a price -- the court system often appears to protect the criminal rather than the victim, and to unduly favor defendants who are blessed with clever attorneys. On the other hand, if the system doesn't place a heavy burden on government prosecutors, we risk sending innocent people to jail and we make it easier for our government to slide into totalitarian practices. One thing is sure, no matter what type of system we have for separating the bad citizens from the good, it will always be a matter of great controversy.
Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections for people suspected of and charged with crimes. These include the right to confront witnesses, the right to not testify, the right to an attorney, the right to a jury trial and the right to be free from unreasonable searches and seizures, among others. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass statutes governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.
The courts regulate the interplay between constitutional provisions and legislative enactments. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation in the facts from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result.
Example: Using binoculars to look through a window, a police officer sees something illegal going on in a private home. If the officer is not trespassing at the time she views the activity, she may legally enter the home without a search warrant to arrest the suspects and possibly seize evidence. The legal reasoning behind this result is that people inside a home have no reasonable expectation of privacy if their activities can be viewed through the window. However, if the officer uses a high-powered telescope, or a surveillance satellite picks up the illegal conduct through an open skylight, the results may be different., because we reasonably expect that our private activities will not be subject to such invasive surveillance techniques.
http://www.criminal-attorney.info/lawyer-attorney-4373DD5E-39D7-46D3-A14B18B8E8BFE2EE.html
The word "criminal" reflects our society's belief that certain acts are unacceptable and that people committing these acts should be punished. Because we place a high value on freedom, however, our state and federal constitutions make it very difficult for the government to take that freedom away from us. As a result -- and perhaps as a price -- the court system often appears to protect the criminal rather than the victim, and to unduly favor defendants who are blessed with clever attorneys. On the other hand, if the system doesn't place a heavy burden on government prosecutors, we risk sending innocent people to jail and we make it easier for our government to slide into totalitarian practices. One thing is sure, no matter what type of system we have for separating the bad citizens from the good, it will always be a matter of great controversy.
Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections for people suspected of and charged with crimes. These include the right to confront witnesses, the right to not testify, the right to an attorney, the right to a jury trial and the right to be free from unreasonable searches and seizures, among others. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass statutes governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.
The courts regulate the interplay between constitutional provisions and legislative enactments. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation in the facts from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result.
Example: Using binoculars to look through a window, a police officer sees something illegal going on in a private home. If the officer is not trespassing at the time she views the activity, she may legally enter the home without a search warrant to arrest the suspects and possibly seize evidence. The legal reasoning behind this result is that people inside a home have no reasonable expectation of privacy if their activities can be viewed through the window. However, if the officer uses a high-powered telescope, or a surveillance satellite picks up the illegal conduct through an open skylight, the results may be different., because we reasonably expect that our private activities will not be subject to such invasive surveillance techniques.
http://www.criminal-attorney.info/lawyer-attorney-4373DD5E-39D7-46D3-A14B18B8E8BFE2EE.html
You Can Run, But You Can't Hide
A recent Supreme Court decision encourages you to stand your ground if you're stopped by police.
While patrolling a "high-crime" district in Chicago, two police officers saw a man take off running when he spotted their patrol car. The police chased and caught him, patted him down and found an illegal weapon. At his trial, the man -- Wardlow by name -- asked the court to keep the weapon out of evidence, arguing that the chase and pat down were illegal. Wardlow argued that the police had no constitutional basis to believe that he might be engaged in criminal activity. The trial court refused Wardlow's request, and the case ultimately reached the United States Supreme Court.
On January 12, 2000, the Court ruled that the police acted constitutionally and that the trial court was correct in allowing the weapon into evidence. (Illinois v. Wardlow)
What does the Wardlow case teach us? Basically, it confirms what most of us already suspect -- when it comes to the police you can run, but you can't hide. But if this rule is so simple, why did it take a U.S. Supreme Court case to set us right? Let's take a closer look at the law of search and seizure, and why this case makes an important contribution to it.
The Fourth Amendment to the Constitution requires that to make a valid search, the police must first have probable cause to believe that contraband or other evidence of a crime will be uncovered. Probable cause has no fixed definition. In essence, it means that there is adequate objective information to form a belief that it is more likely than not that a crime has occurred or is occurring and that the suspect is involved. The police are supposed to obtain a search warrant -- written permission from a judge -- before making a search. However, there are exceptions, such as when circumstances don't allow adequate time to get a warrant.
In the Wardlow case, there was no search in the classic sense. Rather, the officers conducted what's known as a "stop and frisk." In a case decided over 30 years ago, the Supreme Court ruled that the police may:
* stop a person in a public place if they have a "reasonable suspicion that the person is involved in criminal activity," and
* frisk the person (pat his or her outer clothing for weapons) for self-defense purposes if they are concerned that the person might be armed.
If the police discover evidence of a crime in the course of conducting the frisk, that evidence can be used in a criminal trial only if the police can demonstrate "reasonable suspicion" for the initial stop. But what is reasonable suspicion? As with probable cause, the definition varies from case to case. Reasonable suspicion requires less certainty than probable cause but more than a mere hunch. All we really know for sure is that the police must base their suspicion on facts that can be articulated and not on mere intuition. In Wardlow, the articulated facts were:
* Wardlow was in a "high narcotics traffic" area, and
* Wardlow ran when he saw the police.
These facts, said the Court, were enough to justify the stop (actually, the chase) under the reasonable suspicion standard, so the frisk was therefore legal.
Suppose Wardlow had stood his ground. Even though it was a high crime area, previous cases have held that the police cannot use that one fact to justify a stop and frisk. It was only because Wardlow took flight that the police succeeded in proving reasonable suspicion.
http://www.criminal-attorney.info/lawyer-attorney-1F59B97A-E405-4205-B17204ED7102568F.html
While patrolling a "high-crime" district in Chicago, two police officers saw a man take off running when he spotted their patrol car. The police chased and caught him, patted him down and found an illegal weapon. At his trial, the man -- Wardlow by name -- asked the court to keep the weapon out of evidence, arguing that the chase and pat down were illegal. Wardlow argued that the police had no constitutional basis to believe that he might be engaged in criminal activity. The trial court refused Wardlow's request, and the case ultimately reached the United States Supreme Court.
On January 12, 2000, the Court ruled that the police acted constitutionally and that the trial court was correct in allowing the weapon into evidence. (Illinois v. Wardlow)
What does the Wardlow case teach us? Basically, it confirms what most of us already suspect -- when it comes to the police you can run, but you can't hide. But if this rule is so simple, why did it take a U.S. Supreme Court case to set us right? Let's take a closer look at the law of search and seizure, and why this case makes an important contribution to it.
The Fourth Amendment to the Constitution requires that to make a valid search, the police must first have probable cause to believe that contraband or other evidence of a crime will be uncovered. Probable cause has no fixed definition. In essence, it means that there is adequate objective information to form a belief that it is more likely than not that a crime has occurred or is occurring and that the suspect is involved. The police are supposed to obtain a search warrant -- written permission from a judge -- before making a search. However, there are exceptions, such as when circumstances don't allow adequate time to get a warrant.
In the Wardlow case, there was no search in the classic sense. Rather, the officers conducted what's known as a "stop and frisk." In a case decided over 30 years ago, the Supreme Court ruled that the police may:
* stop a person in a public place if they have a "reasonable suspicion that the person is involved in criminal activity," and
* frisk the person (pat his or her outer clothing for weapons) for self-defense purposes if they are concerned that the person might be armed.
If the police discover evidence of a crime in the course of conducting the frisk, that evidence can be used in a criminal trial only if the police can demonstrate "reasonable suspicion" for the initial stop. But what is reasonable suspicion? As with probable cause, the definition varies from case to case. Reasonable suspicion requires less certainty than probable cause but more than a mere hunch. All we really know for sure is that the police must base their suspicion on facts that can be articulated and not on mere intuition. In Wardlow, the articulated facts were:
* Wardlow was in a "high narcotics traffic" area, and
* Wardlow ran when he saw the police.
These facts, said the Court, were enough to justify the stop (actually, the chase) under the reasonable suspicion standard, so the frisk was therefore legal.
Suppose Wardlow had stood his ground. Even though it was a high crime area, previous cases have held that the police cannot use that one fact to justify a stop and frisk. It was only because Wardlow took flight that the police succeeded in proving reasonable suspicion.
http://www.criminal-attorney.info/lawyer-attorney-1F59B97A-E405-4205-B17204ED7102568F.html
Many Potential Pitfalls In Brain Injury Cases
Traumatic brain injuries (commonly referred to as TBIs) are unique: No two are the same.
Unlike demonstrable orthopedic injuries, a TBI is unseen, misunderstood and overlooked. Yet, it is described by the Brain Injury Association as "The Silent Epidemic." The unique presentation of a TBI can present many potential pitfalls in litigation from statute of limitations to proving damages.
Not Clear Cut
TBIs are not clear-cut. They are not often seen on diagnostic tests (EEGs, X-rays, CT scans, MRIs, PET Scans), and normal diagnostic film studies do not rule out the presence of a TBI. Unlike fractures, which are demonstrated on such films, brain damage can occur that current film studies are insensitive to.
Manifestation of a TBI varies both in quality, extent and duration. Many factors affect the nature and consequences of a TBI: the premorbid personality of the injured person; the amount (g force) and direction (acceleration/deceleration and/or rotational) of the forces causing the TBI; and the areas of the brain affected.
Some people recover from severe brain injuries while others are permanently impaired from minor TBIs. Some areas of the brain (frontal) are susceptible to injury but brain injury can be diffuse and opposite the area of impact (coup, contrecoup). No two TBIs are alike; no two TBI cases are the same.
A few words about nomenclature: TBIs that are the result of trauma may differ qualitatively from traumatic brain injuries (e.g. those caused by oxygen deprivation or toxic poisoning).
Regardless of etiology, brain injuries are described as minor, moderate or severe. These adjectives describe the duration of unconsciousness (or alteration of mental awareness), not the severity of the resulting impairment.
Ratings scales - such as the Glasgow Coma Scale or Los Ranchos Amigos Scale - are used by medical personnel to record a person's duration of unconsciousness and subsequent responsiveness to emergency, acute and rehabilitative treatments.
Because TBIs vary, the ultimate case damages are not necessarily obvious from the first interview. Sometimes the presenting symptoms or complaints are attributed to pre-existing and/or co-existing medical issues. Making the differential diagnosis and the causal connection may take time.
When a TBI is diagnosed (and many minor TBIs are not diagnosed until months after the traumatic event), time will reveal whether the injury will be permanent or not. This uncertainty will cause plaintiffs' attorneys consternation in deciding whether or not to pursue a TBI claim (while the statute of limitations, infra, is running).
When pursuing a TBI claim, attorneys confront the ambiguity of whether and when a person with a TBI has reached - or will reach - a medical end result, and whether that person is at increased risk for additional neurological consequences (i.e., damages), see Gore, infra.
Though, generally, most recovery occurs within 18 to 24 months post-incident, attorneys may not have the luxury of time to file suit. Given the often-late diagnosis of a TBI, the uncertainty of outcome and the statute of limitations, infra, attorneys are faced with a difficult choice whether or not to pursue the claim.
The statute of limitations, with respect to brain injury, may be unforgiving. In a 1984 Massachusetts case, a construction worker had sustained a head injury, but his claim was not brought until four-and-a-half years after the incident, when the family claims it first became aware that the plaintiff's depression and organic brain injury were likely caused by the construction accident. (The plaintiffs "discovered" the relationship of the plaintiff's injuries to the incident through a later diagnosis by a physician, Dr. Neal Borenstein.) See Gore v. Daniel O'Connell Sons, Inc., 17 Mass. App. Ct. 645 (1984).
Dr. Borenstein diagnosed the plaintiff as having "depression" and "organic brain syndrome." The plaintiffs argued that the three-year statute of limitations was tolled because the plaintiff's condition was inherently unknowable. (Id. at p. 646)
The Gore facts illustrates that TBI litigation may have traps for the unwary:
"On August 16, 1976, Gore, while working as a mason on a construction job, was hit in the head by a 4" x 4" x 8' timber. Although he was wearing hardhat, the blow must have been considerable because Gore was told at the Holyoke Hospital, to which he had been taken for examination, that 'he had apparently received a bad concussion.' (The quoted phrase is from a report by the psychiatrist who examined Gore on May 31, 1979, and who made the diagnosis on which the plaintiffs rest their action.) Gore displayed no outward physical manifestations of injury, but twenty-four hours after the accident he felt helpless and listless. From that time on Gore was depressed. He consulted a series of physicians. Dr. Smith, the physician who originally examined Gore at the hospital, sent Gore for a neurological work-up which turned up no neurological symptoms. A Dr. Reiss was similarly unable to find a neurological basis for Gore's difficulties. There followed a trip to the Lahey Clinic. Doctors there, following a medical and psychiatric work-up, diagnosed Gore's difficulty as anxiety with depression. Psychotherapy with a Dr. Williams followed. He wrote on February 28, 1978, that it was his 'impression that the symptoms are related to [Gore's] accident.' [fn3] Dr. Williams posited 'residual symptomatology from the blow to the head' and 'a compensation neurosis' arising from the accident. On June 6, 1978, Gore underwent a battery of tests at the Neuro-Psychological Testing Laboratory at the Baystate Medical Center. An examining psychologist, Dr. Klepper, gave his diagnostic impression that: 'Gerald Gore appears to have a chronic, mild, organic syndrome, associated with brain trauma, affecting the frontal and temporal lobes.' Still another psychiatric examination of Gore was conducted May 31, 1979, by Dr. Borenstein, who made a written report and diagnosis on June 19, 1979. Dr. Borenstein addressed his report to the plaintiffs' lawyer, and we may safely infer that it was prepared in anticipation of litigation. The Borenstein diagnosis is the one which the plaintiffs say informed them for the first time of the nature of Gore's medical condition. (Id., pgs. 646-47)."
'Inherently Unknowable'?
Though TBI is not easily or quickly diagnosed, it may not be "inherently unknowable."
When undertaking a TBI claim, all of the damages may not be "knowable" when settlement or trial comes. The late occurrence of seizures exemplifies the attorney's quandary.
Whether by settlement of jury verdict, the resolution of a TBI case should take in to account all of the plaintiff's damages, but the consequences of TBI are not always readily manifest, as the VanAlstyne case proved.
The plaintiff in that case, a 15-year-old, sustained a TBI in a motor vehicle accident and was awarded $50,000 by a jury (less a percentage for comparative negligence). But about two months after the verdict and nearly three years after the subject incident, the plaintiff sustained his first seizure.
The court granted the plaintiff's motion for relief from the judgment and a new trial on the issue of damages, pursuant to Mass. R. Civ. P. 60(b)(2), 365 Mass. 828 (1974), on the basis of newly discovered evidence (the10-day period for a motion for new trial prescribed in Mass. R. Civ. P. 59[b], 365 Mass. 827 [1974], having by then expired). See VanAlstyne v. Whalen, 15 Mass. App. Ct. 340, 345 (1983).
According to an affidavit filed by a physician on behalf of the plaintiff, this permanent condition could not have been diagnosed earlier. (Id.) The court allowed the plaintiff's motion and remanded the case for a new trial on damages only.
What would have been the result had the case settled and the undiagnosable seizures occurred three months later? What if the settlement had been approved by a court (because it involved a minor (as in the Gore case) or an incompetent and seizures occurred post-court approval?
With medical literature and research reporting an association between Alzheimer's and TBI, and depression and TBI, these questions may no longer be academic.
As seen, the sequelae from a TBI are sometimes (1) undiagnosable at a given moment, (see VanAlstyne); and (2) unpredictable (there was no early onset of seizures in the Gore case. The sequelae do not occur in isolation; often, the person sustains other injuries. Sometimes the TBI is overlooked or minimized in the context of other serious, easier to prove orthopedic and/or neurological injuries. Psychological injuries can co-exist with TBI.
Persons with TBI can have a range of symptoms from problems in attention, concentration, short-term memory, spatial relations, time concepts and speech to loss of smell, disturbances in gait, balance and sometimes paralysis.
The cognitive changes are subtler than the physical injuries and present the attorney with the greatest challenges because the person with TBI may be his or her own worst witness. Persons with TBI may have amnesia for events immediately before and after the subject incident, leaving the liability evidence to other witnesses including the defendant(s).
Cognitive symptoms will impact other aspects of the litigation. Persons with TBI who have ongoing short-term memory problems make the person a less effective client in the litigation process.
When a Rule 35 defense medical exam occurs, the person with TBI may be at a disadvantage. (TBI cases often involve a neuropsychological (defense) examination under Rule 35. But note that Rule 35 may expressly provide for examination by a "physician" only, not a neuropsychologist, who is a licensed psychologist with specialized training in the field of neuropsychology. "When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control." See Mass. R. Civ. P 35.)
If a person with TBI undergoes a Rule 35 examination, the person may be unable to recall what occurs during the defense examination. A motion to have the examination recorded (audio and/or video) or monitored in some fashion may be warranted. Such motions are met with varied success.
The Alaska Supreme Court, in allowing plaintiff's counsel to attend the defense medical exam, cited cases from California, New York, Florida and Washington. See Langfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1144, 1145 (1989).
The Alaska court reversed the lower court's decision requiring the petitioner to submit to an unrecorded medical examination without the presence of counsel. Id. at 1147.
A Rule 35 DME is an adversarial discovery tool. The DME is analogous to a deposition where the examiner asks the plaintiff questions, but, unlike a deposition, only the defendant's expert notes (and remembers) what is discussed and happens. The results of the DME can then be used adversely against the plaintiff.
A plaintiff with short-term memory problems would be incapable of assisting his counsel in challenging what occurred during the Rule 35 examination. Audiotaping, video-recording and stenographic records may provide the needed safeguards to a plaintiff with TBI.
A person with TBI may also have psychiatric injuries: TBI and psychiatric conditions are not mutually exclusive.
For example, as the person with TBI becomes aware of cognitive difficulties, while remembering how they functioned pre-accident, they may become depressed. Is such a process organic or non-organic in origin?
Does it make a difference in the litigation context?
Still others are traumatized by the horrible event and develop Post-Traumatic Stress Disorder (PTSD), which complicates their clinical and legal presentation. Query as whether or not the psychiatric condition obscures or exacerbates the cognitive deficits.
Neuropsychological testing may become a focal point in sorting out the multitude of symptoms after TBI.
Performed by a well-credentialed and experienced neuropsychologist, the testing results may provide objective data of the profound cognitive and emotional effects of a TBI. Challenges, however, are made to the methodology, raw data, interpretation and validity of the scores, findings and interpretation, whether the neuropsychologist is a treater, plaintiff's or defendant's expert.
TBI litigation presents our clients and our profession with significant challenges; and it is for good reason:
"What we are today comes from our thoughts of yesterday, and our present thoughts build our life of tomorrow: our life is the creation of our mind."
- Dhammapada v. I, circa, 2nd Century B.C.
Kenneth I. Kolpan is a plaintiffs' personal-injury attorney and principal of the Law Office of Kenneth I. Kolpan in Boston. For the past 22 years, he has concentrated his practice in the representation of persons with traumatic brain injuries and other catastrophic injuries. Kolpan has been co-chairman of the National Brain Injury Association's Attorney Conference for the past 15 years. He is on the Board of Editors of the Neurolaw Letter, and has written several chapters in books on traumatic brain injury.
http://www.kolpan.com/lawyer-attorney-1145238.html
Unlike demonstrable orthopedic injuries, a TBI is unseen, misunderstood and overlooked. Yet, it is described by the Brain Injury Association as "The Silent Epidemic." The unique presentation of a TBI can present many potential pitfalls in litigation from statute of limitations to proving damages.
Not Clear Cut
TBIs are not clear-cut. They are not often seen on diagnostic tests (EEGs, X-rays, CT scans, MRIs, PET Scans), and normal diagnostic film studies do not rule out the presence of a TBI. Unlike fractures, which are demonstrated on such films, brain damage can occur that current film studies are insensitive to.
Manifestation of a TBI varies both in quality, extent and duration. Many factors affect the nature and consequences of a TBI: the premorbid personality of the injured person; the amount (g force) and direction (acceleration/deceleration and/or rotational) of the forces causing the TBI; and the areas of the brain affected.
Some people recover from severe brain injuries while others are permanently impaired from minor TBIs. Some areas of the brain (frontal) are susceptible to injury but brain injury can be diffuse and opposite the area of impact (coup, contrecoup). No two TBIs are alike; no two TBI cases are the same.
A few words about nomenclature: TBIs that are the result of trauma may differ qualitatively from traumatic brain injuries (e.g. those caused by oxygen deprivation or toxic poisoning).
Regardless of etiology, brain injuries are described as minor, moderate or severe. These adjectives describe the duration of unconsciousness (or alteration of mental awareness), not the severity of the resulting impairment.
Ratings scales - such as the Glasgow Coma Scale or Los Ranchos Amigos Scale - are used by medical personnel to record a person's duration of unconsciousness and subsequent responsiveness to emergency, acute and rehabilitative treatments.
Because TBIs vary, the ultimate case damages are not necessarily obvious from the first interview. Sometimes the presenting symptoms or complaints are attributed to pre-existing and/or co-existing medical issues. Making the differential diagnosis and the causal connection may take time.
When a TBI is diagnosed (and many minor TBIs are not diagnosed until months after the traumatic event), time will reveal whether the injury will be permanent or not. This uncertainty will cause plaintiffs' attorneys consternation in deciding whether or not to pursue a TBI claim (while the statute of limitations, infra, is running).
When pursuing a TBI claim, attorneys confront the ambiguity of whether and when a person with a TBI has reached - or will reach - a medical end result, and whether that person is at increased risk for additional neurological consequences (i.e., damages), see Gore, infra.
Though, generally, most recovery occurs within 18 to 24 months post-incident, attorneys may not have the luxury of time to file suit. Given the often-late diagnosis of a TBI, the uncertainty of outcome and the statute of limitations, infra, attorneys are faced with a difficult choice whether or not to pursue the claim.
The statute of limitations, with respect to brain injury, may be unforgiving. In a 1984 Massachusetts case, a construction worker had sustained a head injury, but his claim was not brought until four-and-a-half years after the incident, when the family claims it first became aware that the plaintiff's depression and organic brain injury were likely caused by the construction accident. (The plaintiffs "discovered" the relationship of the plaintiff's injuries to the incident through a later diagnosis by a physician, Dr. Neal Borenstein.) See Gore v. Daniel O'Connell Sons, Inc., 17 Mass. App. Ct. 645 (1984).
Dr. Borenstein diagnosed the plaintiff as having "depression" and "organic brain syndrome." The plaintiffs argued that the three-year statute of limitations was tolled because the plaintiff's condition was inherently unknowable. (Id. at p. 646)
The Gore facts illustrates that TBI litigation may have traps for the unwary:
"On August 16, 1976, Gore, while working as a mason on a construction job, was hit in the head by a 4" x 4" x 8' timber. Although he was wearing hardhat, the blow must have been considerable because Gore was told at the Holyoke Hospital, to which he had been taken for examination, that 'he had apparently received a bad concussion.' (The quoted phrase is from a report by the psychiatrist who examined Gore on May 31, 1979, and who made the diagnosis on which the plaintiffs rest their action.) Gore displayed no outward physical manifestations of injury, but twenty-four hours after the accident he felt helpless and listless. From that time on Gore was depressed. He consulted a series of physicians. Dr. Smith, the physician who originally examined Gore at the hospital, sent Gore for a neurological work-up which turned up no neurological symptoms. A Dr. Reiss was similarly unable to find a neurological basis for Gore's difficulties. There followed a trip to the Lahey Clinic. Doctors there, following a medical and psychiatric work-up, diagnosed Gore's difficulty as anxiety with depression. Psychotherapy with a Dr. Williams followed. He wrote on February 28, 1978, that it was his 'impression that the symptoms are related to [Gore's] accident.' [fn3] Dr. Williams posited 'residual symptomatology from the blow to the head' and 'a compensation neurosis' arising from the accident. On June 6, 1978, Gore underwent a battery of tests at the Neuro-Psychological Testing Laboratory at the Baystate Medical Center. An examining psychologist, Dr. Klepper, gave his diagnostic impression that: 'Gerald Gore appears to have a chronic, mild, organic syndrome, associated with brain trauma, affecting the frontal and temporal lobes.' Still another psychiatric examination of Gore was conducted May 31, 1979, by Dr. Borenstein, who made a written report and diagnosis on June 19, 1979. Dr. Borenstein addressed his report to the plaintiffs' lawyer, and we may safely infer that it was prepared in anticipation of litigation. The Borenstein diagnosis is the one which the plaintiffs say informed them for the first time of the nature of Gore's medical condition. (Id., pgs. 646-47)."
'Inherently Unknowable'?
Though TBI is not easily or quickly diagnosed, it may not be "inherently unknowable."
When undertaking a TBI claim, all of the damages may not be "knowable" when settlement or trial comes. The late occurrence of seizures exemplifies the attorney's quandary.
Whether by settlement of jury verdict, the resolution of a TBI case should take in to account all of the plaintiff's damages, but the consequences of TBI are not always readily manifest, as the VanAlstyne case proved.
The plaintiff in that case, a 15-year-old, sustained a TBI in a motor vehicle accident and was awarded $50,000 by a jury (less a percentage for comparative negligence). But about two months after the verdict and nearly three years after the subject incident, the plaintiff sustained his first seizure.
The court granted the plaintiff's motion for relief from the judgment and a new trial on the issue of damages, pursuant to Mass. R. Civ. P. 60(b)(2), 365 Mass. 828 (1974), on the basis of newly discovered evidence (the10-day period for a motion for new trial prescribed in Mass. R. Civ. P. 59[b], 365 Mass. 827 [1974], having by then expired). See VanAlstyne v. Whalen, 15 Mass. App. Ct. 340, 345 (1983).
According to an affidavit filed by a physician on behalf of the plaintiff, this permanent condition could not have been diagnosed earlier. (Id.) The court allowed the plaintiff's motion and remanded the case for a new trial on damages only.
What would have been the result had the case settled and the undiagnosable seizures occurred three months later? What if the settlement had been approved by a court (because it involved a minor (as in the Gore case) or an incompetent and seizures occurred post-court approval?
With medical literature and research reporting an association between Alzheimer's and TBI, and depression and TBI, these questions may no longer be academic.
As seen, the sequelae from a TBI are sometimes (1) undiagnosable at a given moment, (see VanAlstyne); and (2) unpredictable (there was no early onset of seizures in the Gore case. The sequelae do not occur in isolation; often, the person sustains other injuries. Sometimes the TBI is overlooked or minimized in the context of other serious, easier to prove orthopedic and/or neurological injuries. Psychological injuries can co-exist with TBI.
Persons with TBI can have a range of symptoms from problems in attention, concentration, short-term memory, spatial relations, time concepts and speech to loss of smell, disturbances in gait, balance and sometimes paralysis.
The cognitive changes are subtler than the physical injuries and present the attorney with the greatest challenges because the person with TBI may be his or her own worst witness. Persons with TBI may have amnesia for events immediately before and after the subject incident, leaving the liability evidence to other witnesses including the defendant(s).
Cognitive symptoms will impact other aspects of the litigation. Persons with TBI who have ongoing short-term memory problems make the person a less effective client in the litigation process.
When a Rule 35 defense medical exam occurs, the person with TBI may be at a disadvantage. (TBI cases often involve a neuropsychological (defense) examination under Rule 35. But note that Rule 35 may expressly provide for examination by a "physician" only, not a neuropsychologist, who is a licensed psychologist with specialized training in the field of neuropsychology. "When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control." See Mass. R. Civ. P 35.)
If a person with TBI undergoes a Rule 35 examination, the person may be unable to recall what occurs during the defense examination. A motion to have the examination recorded (audio and/or video) or monitored in some fashion may be warranted. Such motions are met with varied success.
The Alaska Supreme Court, in allowing plaintiff's counsel to attend the defense medical exam, cited cases from California, New York, Florida and Washington. See Langfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1144, 1145 (1989).
The Alaska court reversed the lower court's decision requiring the petitioner to submit to an unrecorded medical examination without the presence of counsel. Id. at 1147.
A Rule 35 DME is an adversarial discovery tool. The DME is analogous to a deposition where the examiner asks the plaintiff questions, but, unlike a deposition, only the defendant's expert notes (and remembers) what is discussed and happens. The results of the DME can then be used adversely against the plaintiff.
A plaintiff with short-term memory problems would be incapable of assisting his counsel in challenging what occurred during the Rule 35 examination. Audiotaping, video-recording and stenographic records may provide the needed safeguards to a plaintiff with TBI.
A person with TBI may also have psychiatric injuries: TBI and psychiatric conditions are not mutually exclusive.
For example, as the person with TBI becomes aware of cognitive difficulties, while remembering how they functioned pre-accident, they may become depressed. Is such a process organic or non-organic in origin?
Does it make a difference in the litigation context?
Still others are traumatized by the horrible event and develop Post-Traumatic Stress Disorder (PTSD), which complicates their clinical and legal presentation. Query as whether or not the psychiatric condition obscures or exacerbates the cognitive deficits.
Neuropsychological testing may become a focal point in sorting out the multitude of symptoms after TBI.
Performed by a well-credentialed and experienced neuropsychologist, the testing results may provide objective data of the profound cognitive and emotional effects of a TBI. Challenges, however, are made to the methodology, raw data, interpretation and validity of the scores, findings and interpretation, whether the neuropsychologist is a treater, plaintiff's or defendant's expert.
TBI litigation presents our clients and our profession with significant challenges; and it is for good reason:
"What we are today comes from our thoughts of yesterday, and our present thoughts build our life of tomorrow: our life is the creation of our mind."
- Dhammapada v. I, circa, 2nd Century B.C.
Kenneth I. Kolpan is a plaintiffs' personal-injury attorney and principal of the Law Office of Kenneth I. Kolpan in Boston. For the past 22 years, he has concentrated his practice in the representation of persons with traumatic brain injuries and other catastrophic injuries. Kolpan has been co-chairman of the National Brain Injury Association's Attorney Conference for the past 15 years. He is on the Board of Editors of the Neurolaw Letter, and has written several chapters in books on traumatic brain injury.
http://www.kolpan.com/lawyer-attorney-1145238.html
Handle Brain Injury Evidence Expertly
Presenting persuasive evidence of a client's minor traumatic brain injury required the testimony of medical experts who assess and treat it. These experts typically include neurologists, physiatrists, neuro-psychologists, psychologists, neuropsychiatrics, speech-language pathologists, occupational therapists, and radiologists.
But not every expert in these specialized fields will be able to help your case; within each specialty, only certain individuals and facilities accept patients with traumatic brain injury. The Brain Injury Association of America (www.biausa.org) and the North American Brian Injury Society (www.nabis.org) can help you find the experts you need. Both provide information regarding brain injury treatment programs and providers.
The linchpin of the medical evidence will be the testimony of the neuro psychologist, who will explain how objective test he or she performed on the plaintiff will show how the plaintiff's brain functions. To testify regarding the causal relationship between the injury-causing event and the plaintiff's cognitive deflects, the expert must have extensive access to the plaintiff's pre-accident medical information, including preperi and postnatal records; pediatric record, chiropractic records, records or prior treatment of traumatic brain injury; and psychotherapeutic and substance abuse treatment records.
The neuropsychologist should also see the client's post accident records, including the EMT/fire department report; emergency room records; and treatment records for all other medical visits, including those to dentists and opticians or ophthalmologists.
Education records that this expert will need include nursery, elementary, secondary and post secondary school records, aptitude and achievement test results, records of guidance counseling received; discipline records and records or special education services received.
If the plaintiff is employed, make sure the neuropsychologist has copies of the plaintiff's employment application, personnel file, job description, and pre employment medical examination.
The neuropsychologist should also receive copies of discovery-related document, including:
* motor vehicle accident reports
* accident photos
* the defendants' answers to your interrogatories
* deposition transcripts
* the opposing experts' answers to your interrogatories
* treatises on which your experts or the defense experts will probably rely
Define and Conquer
In one of my first cases, a seasoned judge asked who my experts were. When I told him a physiatrist would be testifying, the judge asked, "Do you mean a psychiatrist?"
Make sure your experts define the medical terms they use in describing the diagnosis and treatment of your client's injury. Most people do not understand terms like physiatry (a medical discipline focused on helping people who are suffering from disabilities due to injury or disease recover from lost functioning), neuro psychology (the study of human behavior as it relates to normal and abnormal central nervous system functioning), and speech language pathology (the study and treatment of speech, language, and swallowing disorders).
Your experts should explain what people in their profession do and their role in the evaluation or treatment of the plaintiff's injury. With the help of demonstrative evidence like an anatomical model of the skull and brain or an animation of how traumatic brain injury occurs, experts should explain:
* what minor traumatic brain injury is
* how minor traumatic brain injury occurs
* why loss of consciousness in not necessary for injury to have occurred
* how seizures contribute to brain injury
* the significance of "second-impact syndrome" - when a second concussion occurs before the symptoms of an earlier concussion have completely cleared
* how brain injuries differ in each patient's case
Your experts will do much of the heavy lifting in helping you prove that your client suffers mild traumatic brain injury. You can lighten their load by making sure they have all the information they need to ensure that their testimony is rock-solid and by offering the guidance they require to communicate their findings to the jury. This may take hours of pretrial preparation, but in the end you - and your client - will be glad you went the extra mile.
http://www.kolpan.com/lawyer-attorney-1124260.html
But not every expert in these specialized fields will be able to help your case; within each specialty, only certain individuals and facilities accept patients with traumatic brain injury. The Brain Injury Association of America (www.biausa.org) and the North American Brian Injury Society (www.nabis.org) can help you find the experts you need. Both provide information regarding brain injury treatment programs and providers.
The linchpin of the medical evidence will be the testimony of the neuro psychologist, who will explain how objective test he or she performed on the plaintiff will show how the plaintiff's brain functions. To testify regarding the causal relationship between the injury-causing event and the plaintiff's cognitive deflects, the expert must have extensive access to the plaintiff's pre-accident medical information, including preperi and postnatal records; pediatric record, chiropractic records, records or prior treatment of traumatic brain injury; and psychotherapeutic and substance abuse treatment records.
The neuropsychologist should also see the client's post accident records, including the EMT/fire department report; emergency room records; and treatment records for all other medical visits, including those to dentists and opticians or ophthalmologists.
Education records that this expert will need include nursery, elementary, secondary and post secondary school records, aptitude and achievement test results, records of guidance counseling received; discipline records and records or special education services received.
If the plaintiff is employed, make sure the neuropsychologist has copies of the plaintiff's employment application, personnel file, job description, and pre employment medical examination.
The neuropsychologist should also receive copies of discovery-related document, including:
* motor vehicle accident reports
* accident photos
* the defendants' answers to your interrogatories
* deposition transcripts
* the opposing experts' answers to your interrogatories
* treatises on which your experts or the defense experts will probably rely
Define and Conquer
In one of my first cases, a seasoned judge asked who my experts were. When I told him a physiatrist would be testifying, the judge asked, "Do you mean a psychiatrist?"
Make sure your experts define the medical terms they use in describing the diagnosis and treatment of your client's injury. Most people do not understand terms like physiatry (a medical discipline focused on helping people who are suffering from disabilities due to injury or disease recover from lost functioning), neuro psychology (the study of human behavior as it relates to normal and abnormal central nervous system functioning), and speech language pathology (the study and treatment of speech, language, and swallowing disorders).
Your experts should explain what people in their profession do and their role in the evaluation or treatment of the plaintiff's injury. With the help of demonstrative evidence like an anatomical model of the skull and brain or an animation of how traumatic brain injury occurs, experts should explain:
* what minor traumatic brain injury is
* how minor traumatic brain injury occurs
* why loss of consciousness in not necessary for injury to have occurred
* how seizures contribute to brain injury
* the significance of "second-impact syndrome" - when a second concussion occurs before the symptoms of an earlier concussion have completely cleared
* how brain injuries differ in each patient's case
Your experts will do much of the heavy lifting in helping you prove that your client suffers mild traumatic brain injury. You can lighten their load by making sure they have all the information they need to ensure that their testimony is rock-solid and by offering the guidance they require to communicate their findings to the jury. This may take hours of pretrial preparation, but in the end you - and your client - will be glad you went the extra mile.
http://www.kolpan.com/lawyer-attorney-1124260.html
Offshore Lawyer versus Onshore Lawyer – Conflict of Interest
Conflict of Interest Introduction - When setting up an offshore asset protection structure you should be using an offshore lawyer not a lawyer in your home country (onshore attorney). There are a number of reasons for this but one of the biggest reasons is there is a conflict of interest with an onshore law firm in your own country. If you have financial enemies and they attempt to go after your funds only to find out that you have relocated your assets offshore with the assistance of this lawyer or law firm a number of things could happen to your onshore lawyer that would not be good for that lawyer.
Fraudulent Conveyance – This is a concept that is dealt with far more seriously in some countries than in Panama. A fraudulent conveyance occurs when one intentionally moves assets out of the reach of creditors to delay, hinder or prevent the creditor from recovering these assets from you to satisfy a debt. Generally the debt is a judgment from a valid court of competent jurisdiction and venue. There are all sorts of interpretations to fraudulent conveyance in different jurisdictions and countries. In Panama a fraudulent conveyance is merely a remedy by which a creditor can attempt to recover a debt from assets that have been relocated to Panama. It is not an illegal act prohibited by law. It is not a vehicle to nullify a corporation, trust, foundation or corporation. It is nothing more than a creditor remedy in Panama.
Facilitating a Fraudulent Conveyance – A client goes to an onshore attorney and says I want to get my money out of here into an offshore jurisdiction so I don’t get wiped out by such and such a situation which he describes. What the circumstances are is not all that important here for what we are going to point out. The onshore lawyer, if he helps this client can be sued by the creditors of the client for facilitating a fraudulent conveyance. This means the creditor can attempt to recover the money he would normally have been able to collect from debtor (onshore lawyer client) had the onshore lawyer not assisted the debtor in moving his funds offshore beyond the reach of the creditor. The onshore lawyer would usually have malpractice insurance to cover the losses from such an action so think deep pockets. So your lawyer is a target from your creditor(s) and the lawyer knows this and he can not just operate in terms of what is best for you he has to worry about covering himself from attack as well – conflict of interest is the operative term here. Under Panama law no such action against the Panama lawyer is permissible since a fraudulent conveyance is just a creditor remedy not a violation of law or a civil prohibited action.
What is a fraudulent Conveyance Anyway? – In different countries the laws pertaining to fraudulent conveyances vary. In Panama the burden of proof is on the creditor to show the court that the movement of assets was specifically designed to delay, hinder or prevent the creditor from collecting their debt. The interpretation of the law can be complex. The costs of such litigation can be expensive. The chances of winning in Panama are not great for the creditor. Once the lawsuit starts the person who has their assets in Panama may think it is best to relocate the assets from Panama to another jurisdiction after the creditor spent a lot of money on the lawsuit. Then the creditor has to start over again in another country. There is a three year time limit on the fraudulent conveyance in Panama which means after three years has passed from the time of the conveyance no action can be brought against the conveyance of funds as a fraudulent conveyance. If one brought an action against a conveyance in Panama and the three years time limit ran out before the case was heard it might be considered moot. The key points to a fraudulent conveyance action focus around intent and would be as follows:
* When were the assets moved in relationship to the debt?
* Were there any circumstances that would justify relocating the assets like the person moved, funds were needed for business purposes, medical purposes, a family member was in grave distress financially etc?
* Timing of when the debt was officially recognized which could be a judgment date or something else in relation to when the assets were moved?
* Did the debtor move all of the assets making themselves insolvent or just some of the assets leaving other assets in place?
* Were the assets moved while there was a court case in process?
* How can one assume the debtor knew defeat in the lawsuit was a sure outcome?
* How do you deal with a person who has been in one or more lawsuits at any point in time for a number of years?
* How is the debtor supposed to know the debt is valid before the outcome of the court case?
* Does this mean any shift of their assets is a fraudulent conveyance?
* Did the debtor attempt to conceal the transfer of assets from the creditor specifically or was this part of a privacy asset protection strategy?
* Did the fraudulent conveyance involve transfer of assets such as real estate, boats, cars, etc. at below market prices?
Fraudulent Conveyance Intent - It is clear that more than just timing plays a big part in determining what is the intent and is not intent to conduct a fraudulent conveyance. The problem for the onshore lawyer is that if the creditor just argues he facilitated a fraudulent conveyance he and his insurance company will be in a fight and at the least his rates for insurance will go up or the insurance companies my drop him altogether. The onshore lawyer faces further difficulties along the same lines if your creditors involve government agencies or if there is a court order for child support, alimony or spousal support and it could be alleged that the conveyance was to avoid these payments and the onshore lawyer facilitated this for you by putting you into an offshore asset protection structure.
Onshore Lawyer Asset Protection Tactics – For many of the above mentioned reasons the onshore asset protection lawyer will put a client into an onshore asset protection vehicle. Generally these vehicles are next to worthless because any judge can usually punch right through them at will. The grounds they use are fraudulent conveyance, fraud, sham structure, straw man, or they just flat out avoid grounds and just go after the assets without any explanation. If you were to take a survey in your country as to whether or not the people thought the judges act fairly or not what do you think the outcome would be?
Onshore Lawyer Conflict of Interest - So if the onshore lawyer keeps the clients assets onshore where any judge can attach them he removes himself from the exposure that he would face if he moved the client offshore where the assets were truly out of the reach of the clients financial enemies. If the client loses his money to his financial enemies due to the onshore asset protection structure being faulty then the onshore lawyer says well heck a judge lawfully ordered it, I have no liability. If the client was in an offshore asset protection structure the client would keep his money and the lawyer would get the lawsuit from the creditor(s) for facilitating what they will consider to be a fraudulent conveyance. The fact that the client loses his money in the onshore asset protection structure is a result of the conflict of interest. The onshore lawyer exposes himself by really helping the client get his money offshore where it will be really safe. Another conflict of interest is the fact that if the onshore lawyer puts the client into an onshore asset protection structure and the structure gets attacked by financial enemies the lawyer gets to defend the asset protection structure and this is a good payday for the onshore lawyer. If the lifetime savings of the client comes under attack the client is going to not be that frugal in defending his wealth. If the client had their assets placed offshore there would be no such payday for the onshore lawyer. Remember when the onshore lawyer explains the asset protection structure he proposes he will probably not tell the client how expensive it is going to be to defend the structure, the chances of winning such an attack and what his percentage of wins has been defending his asset protection structures.
Repatriation of Funds – This is a legal concept that occurs in a lot of jurisdictions especially the ones that are privacy invasive. This is where a judge orders a person to bring funds back into their country pending the outcome of a court case so they can be attached by the creditor if he prevails in court. An order like this can also come post judgment. Generally judges grant such orders freely to their own government agencies usually in criminal cases, sometimes a serious civil case like civil fraud. Ok let’s say you retained an onshore lawyer to set up your asset protection structure. If the onshore lawyer put you into an onshore weak asset protection structure the whole issue of repatriation of funds will never come up since the funds are already in the country awaiting an attachment order from a judge anytime he want s to have at your funds. Now let’s see what happens if the onshore lawyer puts you into an offshore structure. Let’s further assume you have decided to go to greener pastures and have moved to the island of green pastures and no taxes. Well the lawyer is still onshore and now your creditors and their lawyers are going to give that lawyer a pounding in court and probably sue him for facilitating your asset protection structure which prevented them from collecting their debt. So they take the onshore lawyer to court, pierce through the attorney client privilege using fraudulent conveyance as grounds to do this. They then get all the records from the onshore lawyer about your offshore structure and this enables the creditors to now try and chase you offshore since they have a roadmap of your asset protection structure. Of course your attorney can be sued by your creditors for conspiracy and facilitating your so called fraudulent conveyance as they will call it. So why would your onshore attorney wish to expose himself to all this just to sell you a good offshore asset protection structure when he can sell you a weak asset protection structure that is onshore and avoid all the legal exposure for himself. A good offshore law firm in Panama has no such legal exposure in that they are under Panama law not the law of another jurisdiction. Assets in Panama are under Panama law not assets of other jurisdictions.
Onshore Lawyers and Offshore Asset Protection Structures – Onshore lawyers tend to not understand offshore asset protection structures. They are unfamiliar with the laws of the jurisdictions and are very uncomfortable in this sort of environment. To be fair this is another big reason why many lawyers prefer to use an onshore asset protection structure. They just do not understand the ins and outs of offshore asset protection structures so they rely on what they understand often not even understanding the extra strength and security the offshore asset protection structure provides for the client. There are possibilities available in good offshore jurisdictions that are unheard of in onshore jurisdictions.
When you want an offshore asset protection structure, go offshore!
http://www.panamalaw.org/offshore_lawyer_versus_onshore_lawyer.html
Fraudulent Conveyance – This is a concept that is dealt with far more seriously in some countries than in Panama. A fraudulent conveyance occurs when one intentionally moves assets out of the reach of creditors to delay, hinder or prevent the creditor from recovering these assets from you to satisfy a debt. Generally the debt is a judgment from a valid court of competent jurisdiction and venue. There are all sorts of interpretations to fraudulent conveyance in different jurisdictions and countries. In Panama a fraudulent conveyance is merely a remedy by which a creditor can attempt to recover a debt from assets that have been relocated to Panama. It is not an illegal act prohibited by law. It is not a vehicle to nullify a corporation, trust, foundation or corporation. It is nothing more than a creditor remedy in Panama.
Facilitating a Fraudulent Conveyance – A client goes to an onshore attorney and says I want to get my money out of here into an offshore jurisdiction so I don’t get wiped out by such and such a situation which he describes. What the circumstances are is not all that important here for what we are going to point out. The onshore lawyer, if he helps this client can be sued by the creditors of the client for facilitating a fraudulent conveyance. This means the creditor can attempt to recover the money he would normally have been able to collect from debtor (onshore lawyer client) had the onshore lawyer not assisted the debtor in moving his funds offshore beyond the reach of the creditor. The onshore lawyer would usually have malpractice insurance to cover the losses from such an action so think deep pockets. So your lawyer is a target from your creditor(s) and the lawyer knows this and he can not just operate in terms of what is best for you he has to worry about covering himself from attack as well – conflict of interest is the operative term here. Under Panama law no such action against the Panama lawyer is permissible since a fraudulent conveyance is just a creditor remedy not a violation of law or a civil prohibited action.
What is a fraudulent Conveyance Anyway? – In different countries the laws pertaining to fraudulent conveyances vary. In Panama the burden of proof is on the creditor to show the court that the movement of assets was specifically designed to delay, hinder or prevent the creditor from collecting their debt. The interpretation of the law can be complex. The costs of such litigation can be expensive. The chances of winning in Panama are not great for the creditor. Once the lawsuit starts the person who has their assets in Panama may think it is best to relocate the assets from Panama to another jurisdiction after the creditor spent a lot of money on the lawsuit. Then the creditor has to start over again in another country. There is a three year time limit on the fraudulent conveyance in Panama which means after three years has passed from the time of the conveyance no action can be brought against the conveyance of funds as a fraudulent conveyance. If one brought an action against a conveyance in Panama and the three years time limit ran out before the case was heard it might be considered moot. The key points to a fraudulent conveyance action focus around intent and would be as follows:
* When were the assets moved in relationship to the debt?
* Were there any circumstances that would justify relocating the assets like the person moved, funds were needed for business purposes, medical purposes, a family member was in grave distress financially etc?
* Timing of when the debt was officially recognized which could be a judgment date or something else in relation to when the assets were moved?
* Did the debtor move all of the assets making themselves insolvent or just some of the assets leaving other assets in place?
* Were the assets moved while there was a court case in process?
* How can one assume the debtor knew defeat in the lawsuit was a sure outcome?
* How do you deal with a person who has been in one or more lawsuits at any point in time for a number of years?
* How is the debtor supposed to know the debt is valid before the outcome of the court case?
* Does this mean any shift of their assets is a fraudulent conveyance?
* Did the debtor attempt to conceal the transfer of assets from the creditor specifically or was this part of a privacy asset protection strategy?
* Did the fraudulent conveyance involve transfer of assets such as real estate, boats, cars, etc. at below market prices?
Fraudulent Conveyance Intent - It is clear that more than just timing plays a big part in determining what is the intent and is not intent to conduct a fraudulent conveyance. The problem for the onshore lawyer is that if the creditor just argues he facilitated a fraudulent conveyance he and his insurance company will be in a fight and at the least his rates for insurance will go up or the insurance companies my drop him altogether. The onshore lawyer faces further difficulties along the same lines if your creditors involve government agencies or if there is a court order for child support, alimony or spousal support and it could be alleged that the conveyance was to avoid these payments and the onshore lawyer facilitated this for you by putting you into an offshore asset protection structure.
Onshore Lawyer Asset Protection Tactics – For many of the above mentioned reasons the onshore asset protection lawyer will put a client into an onshore asset protection vehicle. Generally these vehicles are next to worthless because any judge can usually punch right through them at will. The grounds they use are fraudulent conveyance, fraud, sham structure, straw man, or they just flat out avoid grounds and just go after the assets without any explanation. If you were to take a survey in your country as to whether or not the people thought the judges act fairly or not what do you think the outcome would be?
Onshore Lawyer Conflict of Interest - So if the onshore lawyer keeps the clients assets onshore where any judge can attach them he removes himself from the exposure that he would face if he moved the client offshore where the assets were truly out of the reach of the clients financial enemies. If the client loses his money to his financial enemies due to the onshore asset protection structure being faulty then the onshore lawyer says well heck a judge lawfully ordered it, I have no liability. If the client was in an offshore asset protection structure the client would keep his money and the lawyer would get the lawsuit from the creditor(s) for facilitating what they will consider to be a fraudulent conveyance. The fact that the client loses his money in the onshore asset protection structure is a result of the conflict of interest. The onshore lawyer exposes himself by really helping the client get his money offshore where it will be really safe. Another conflict of interest is the fact that if the onshore lawyer puts the client into an onshore asset protection structure and the structure gets attacked by financial enemies the lawyer gets to defend the asset protection structure and this is a good payday for the onshore lawyer. If the lifetime savings of the client comes under attack the client is going to not be that frugal in defending his wealth. If the client had their assets placed offshore there would be no such payday for the onshore lawyer. Remember when the onshore lawyer explains the asset protection structure he proposes he will probably not tell the client how expensive it is going to be to defend the structure, the chances of winning such an attack and what his percentage of wins has been defending his asset protection structures.
Repatriation of Funds – This is a legal concept that occurs in a lot of jurisdictions especially the ones that are privacy invasive. This is where a judge orders a person to bring funds back into their country pending the outcome of a court case so they can be attached by the creditor if he prevails in court. An order like this can also come post judgment. Generally judges grant such orders freely to their own government agencies usually in criminal cases, sometimes a serious civil case like civil fraud. Ok let’s say you retained an onshore lawyer to set up your asset protection structure. If the onshore lawyer put you into an onshore weak asset protection structure the whole issue of repatriation of funds will never come up since the funds are already in the country awaiting an attachment order from a judge anytime he want s to have at your funds. Now let’s see what happens if the onshore lawyer puts you into an offshore structure. Let’s further assume you have decided to go to greener pastures and have moved to the island of green pastures and no taxes. Well the lawyer is still onshore and now your creditors and their lawyers are going to give that lawyer a pounding in court and probably sue him for facilitating your asset protection structure which prevented them from collecting their debt. So they take the onshore lawyer to court, pierce through the attorney client privilege using fraudulent conveyance as grounds to do this. They then get all the records from the onshore lawyer about your offshore structure and this enables the creditors to now try and chase you offshore since they have a roadmap of your asset protection structure. Of course your attorney can be sued by your creditors for conspiracy and facilitating your so called fraudulent conveyance as they will call it. So why would your onshore attorney wish to expose himself to all this just to sell you a good offshore asset protection structure when he can sell you a weak asset protection structure that is onshore and avoid all the legal exposure for himself. A good offshore law firm in Panama has no such legal exposure in that they are under Panama law not the law of another jurisdiction. Assets in Panama are under Panama law not assets of other jurisdictions.
Onshore Lawyers and Offshore Asset Protection Structures – Onshore lawyers tend to not understand offshore asset protection structures. They are unfamiliar with the laws of the jurisdictions and are very uncomfortable in this sort of environment. To be fair this is another big reason why many lawyers prefer to use an onshore asset protection structure. They just do not understand the ins and outs of offshore asset protection structures so they rely on what they understand often not even understanding the extra strength and security the offshore asset protection structure provides for the client. There are possibilities available in good offshore jurisdictions that are unheard of in onshore jurisdictions.
When you want an offshore asset protection structure, go offshore!
http://www.panamalaw.org/offshore_lawyer_versus_onshore_lawyer.html
Guide to Short Form Open Access Legal Publications
Introduction
Short form open access legal publications provide a forum for a wide range of scholarly and timely exchanges on new developments and issues. See generally Lawrence B. Solum, Download It While Its Hot: Open Access and Legal Scholarship, 10 Lewis & Clark Law Review 841 (2006). Of particular interest are the law review companions.
The companion publications fit into a growing niche of multi-format interactive online journals. They usually seek responses to articles appearing in their main law reviews and solicit original scholarship or viewpoints on current topics. Many of the publishers invite responses or discussion, via site blogs, on subjects raised in their short form articles. Overall, they offer a new conduit for debate and discussion of legal issues, and a new research and current awareness tool.
While blogs and Wikis are beginning to find their place, law review companions are building on an established path for disseminating and preserving legal scholarship. And they embrace the best of print and online traditions by adhering to the publishing standards of law reviews while taking advantage of the public square of the Internet. See generally Gordon Smith, Online Companions to Law Reviews and the Future of Legal Blogs, Conglomerate, April 24, 2007
This article is a collection of these emerging short form journals. Until they are fully integrated into the legal indexing system, a web monitoring tool or subscription will be the best way to keep track. Still, steps are being taken to integrate companion journals and similar online publications into popular databases and indexes. See, e.g., About the Harvard Law Review Forum (discussing plans to add the Forum to Westlaw and Lexis databases); LexisNexis Delivers Blog Content via Newstex Blogs On Demand, LexisNexis Press Release, April 5, 2006.
CONNtemplations (Connecticut Law Review)
"The site initially features pieces from a number of authors on topics related to the relevance and future of legal periodicals. These pieces flow from the Commentary featured in Issue 1 of Volume 39 of the Law Review, which is available on Connecticut Law Review's website."
Environmental Law Online (Lewis & Clark Law School's Environmental Law)
In this companion online journal "you will find selected articles and essays from our print journal, web-only articles, and an archive of our 9th Circuit case reviews."
First Impressions (Michigan Law Review)
"First Impressions, an online companion to the Review, features op-ed length articles by academics and practitioners in order to fill the gap between the blogosphere and the traditional law review article. This extension of our printed pages aims to provide a forum for quicker dissemination of the legal community's first impressions of recent changes in the law."
Harvard International Law Journal Online (Harvard International Law Journal)
"The ILJ Online is a new, web-based component of the Harvard International Law Journal, publishing brief, focused articles on a variety of international law topics."
Harvard Law Review Forum (Harvard Law Review)
"The Forum is an online extension of our printed pages that is intended to allow for a more robust scholarly discussion of our Articles."
iBlawg (Duke Law and Technology Review)
iBlawg is "an online interactive environment dedicated to publishing brief commentary and facilitating an online discussion about published articles."
Ideas (Hofstra University Law Review)
"'Ideas will serve as the vehicle for short pieces-from three to ten pages in length and having a minimal number of footnotes-on topics of interest to scholars and practitioners. There will be no subject-matter restrictions and no requirement that the pieces relate to one another. 'Ideas' will not be a symposium, but a collection of brief observations on important legal questions. The editors hope to attract submissions from the academy and from prominent members of the bench and bar as well." Introduction: A Good Idea, 33 Hofstra L. Rev. 1121 (2005).
In Brief (Virginia Law Review)
"In Brief features short essays and responses by law professors, judges, practicing lawyers, scholars from other disciplines, and current law students." In Brief Submissions
Journal of the Business Law Society (University of Illinois College of Law)
"This project is inspired by an innovative trend in legal publication, in which weblog technology is utilized to allow students, faculty, and professionals to interact online through legal writing and scholarship; providing a unique complement to traditional law reviews. The purpose of this Journal is to provide our readers with information on recent developments affecting business law. Articles are written by law students, but we invite professors, students, and practitioners to submit articles or user comments for publication on the website." About Us
Northwestern Colloquy (Northwestern University Law Review)
"The Northwestern Colloquy will be the first scholarly weblog to be operated by a major law review. It will feature legal commentary written in the form of blog posts. This new format will allow scholars to publish their thoughts within days of an emerging legal development. The subject matter can be anything within the field of legal inquiry, whether a short exposition of a new idea, an analysis of an emerging legal topic, an ongoing debate regarding a legal issue, or a short response to an already published piece of scholarship. Readers can rely upon the Law Review to ensure that citations in these pieces support the assertions made in the posts. We will also be allowing comments on these pieces in a moderated forum. We hope that this new feature will serve as both an attractive new way in which to publish ideas and as a meeting place for far-flung scholars to interact and refine their work." Announcing the Northwestern Colloquy, Northwestern University Law Review, Oct. 7, 2006
PENNumbra (University of Pennsylvania Law Review)
"PENNumbra seeks to engage a broader audience in legal scholarship by serving as a link between legal academia and the 'blogosphere.' The site features downloadable articles from the print edition of the Law Review, brief scholarly responses to those articles, and online debates on topics of current interest." Press Release, University of Pennsylvania Law Review, Sept. 5, 2006
See Also (Texas Law Review)
"See Also is an online companion to the Texas Law Review that presents responses and critiques of recently published articles in the Review. For each issue of the Review, See Also features responses from members of the academic community and practitioners, styled as op-ed pieces, in order to promote further discussion of the topics addressed in the Review. In addition, See Also provides a forum for our readers to offer their own thoughts and perspectives."
Slip Opinions (Washington University Law Review)
"Slip Opinions is an online supplement to the Washington University Law Review featuring original commentary and debate by members of the legal academy, bench and bar."
TexSupp (Baylor Law Review)
"The staff of TexSupp strives to provide our readers with insightful legal literature including essays, book reviews, responses and letters to the editor."
Yale Journal Pocket Part (Yale Law Journal)
"As members of the legal community know, legal publications often contain "pocket part" supplements with up-to-date information. The Pocket Part plays an analogous role by augmenting the scholarship printed in The Yale Law Journal. It provides original essays and responses to articles printed in the Journal."
In addition, a commons has been created on a popular legal web log to showcase these new journals.
* Law Review Forum Project (Concurring Opinions)
"[W]e have invited a number of law reviews to participate in a partnership with our blog. Throughout the year, each law review will periodically post forum essays here at Concurring Opinions." Announcing the Law Review Forum Project, Concurring Opinions, April 24, 2007. The participating law reviews include:
* Harvard Law Review
* Virginia Law Review
* Michigan Law Review
* University of Pennsylvania Law Review
* Northwestern Law Review
* UCLA Law Review
* George Washington Law Review.
More law reviews across the country are planning to develop online companions, e.g., Illinois Law Forum (University of Illinois Law Review), so we can expect to see their numbers grow. See generally Legal Scholarship Goes Online, Virginia Law Weekly, Feb. 9, 2007. And legal publishers outside academia have already begun hosting their own versions of short-form scholarship and opinion pieces. See, e.g., Findlaw Writ.
Resources
These sites provide information about online, print and other permutations of law reviews and legal scholarship, and the availability of electronic access.
* Current Law Journal Content (Washington & Lee Law School)
* Ejournals (Duke Law Library)
* Law Blog Metrics (Professor Blogs Network)
* Law Journals (University of Southern California)
* Law Journals (WashLaw Web)
* Law Journals: Submissions and Ranking (Washington & Lee Law School)
* Law Periodicals Blog (Washington & Lee Law School)
* Law Reviews Online (Library of Congress)
Social Science Research Network (SSRN)
University Law Review Project
http://www.llrx.com/features/shortformjournals.htm
Short form open access legal publications provide a forum for a wide range of scholarly and timely exchanges on new developments and issues. See generally Lawrence B. Solum, Download It While Its Hot: Open Access and Legal Scholarship, 10 Lewis & Clark Law Review 841 (2006). Of particular interest are the law review companions.
The companion publications fit into a growing niche of multi-format interactive online journals. They usually seek responses to articles appearing in their main law reviews and solicit original scholarship or viewpoints on current topics. Many of the publishers invite responses or discussion, via site blogs, on subjects raised in their short form articles. Overall, they offer a new conduit for debate and discussion of legal issues, and a new research and current awareness tool.
While blogs and Wikis are beginning to find their place, law review companions are building on an established path for disseminating and preserving legal scholarship. And they embrace the best of print and online traditions by adhering to the publishing standards of law reviews while taking advantage of the public square of the Internet. See generally Gordon Smith, Online Companions to Law Reviews and the Future of Legal Blogs, Conglomerate, April 24, 2007
This article is a collection of these emerging short form journals. Until they are fully integrated into the legal indexing system, a web monitoring tool or subscription will be the best way to keep track. Still, steps are being taken to integrate companion journals and similar online publications into popular databases and indexes. See, e.g., About the Harvard Law Review Forum (discussing plans to add the Forum to Westlaw and Lexis databases); LexisNexis Delivers Blog Content via Newstex Blogs On Demand, LexisNexis Press Release, April 5, 2006.
CONNtemplations (Connecticut Law Review)
"The site initially features pieces from a number of authors on topics related to the relevance and future of legal periodicals. These pieces flow from the Commentary featured in Issue 1 of Volume 39 of the Law Review, which is available on Connecticut Law Review's website."
Environmental Law Online (Lewis & Clark Law School's Environmental Law)
In this companion online journal "you will find selected articles and essays from our print journal, web-only articles, and an archive of our 9th Circuit case reviews."
First Impressions (Michigan Law Review)
"First Impressions, an online companion to the Review, features op-ed length articles by academics and practitioners in order to fill the gap between the blogosphere and the traditional law review article. This extension of our printed pages aims to provide a forum for quicker dissemination of the legal community's first impressions of recent changes in the law."
Harvard International Law Journal Online (Harvard International Law Journal)
"The ILJ Online is a new, web-based component of the Harvard International Law Journal, publishing brief, focused articles on a variety of international law topics."
Harvard Law Review Forum (Harvard Law Review)
"The Forum is an online extension of our printed pages that is intended to allow for a more robust scholarly discussion of our Articles."
iBlawg (Duke Law and Technology Review)
iBlawg is "an online interactive environment dedicated to publishing brief commentary and facilitating an online discussion about published articles."
Ideas (Hofstra University Law Review)
"'Ideas will serve as the vehicle for short pieces-from three to ten pages in length and having a minimal number of footnotes-on topics of interest to scholars and practitioners. There will be no subject-matter restrictions and no requirement that the pieces relate to one another. 'Ideas' will not be a symposium, but a collection of brief observations on important legal questions. The editors hope to attract submissions from the academy and from prominent members of the bench and bar as well." Introduction: A Good Idea, 33 Hofstra L. Rev. 1121 (2005).
In Brief (Virginia Law Review)
"In Brief features short essays and responses by law professors, judges, practicing lawyers, scholars from other disciplines, and current law students." In Brief Submissions
Journal of the Business Law Society (University of Illinois College of Law)
"This project is inspired by an innovative trend in legal publication, in which weblog technology is utilized to allow students, faculty, and professionals to interact online through legal writing and scholarship; providing a unique complement to traditional law reviews. The purpose of this Journal is to provide our readers with information on recent developments affecting business law. Articles are written by law students, but we invite professors, students, and practitioners to submit articles or user comments for publication on the website." About Us
Northwestern Colloquy (Northwestern University Law Review)
"The Northwestern Colloquy will be the first scholarly weblog to be operated by a major law review. It will feature legal commentary written in the form of blog posts. This new format will allow scholars to publish their thoughts within days of an emerging legal development. The subject matter can be anything within the field of legal inquiry, whether a short exposition of a new idea, an analysis of an emerging legal topic, an ongoing debate regarding a legal issue, or a short response to an already published piece of scholarship. Readers can rely upon the Law Review to ensure that citations in these pieces support the assertions made in the posts. We will also be allowing comments on these pieces in a moderated forum. We hope that this new feature will serve as both an attractive new way in which to publish ideas and as a meeting place for far-flung scholars to interact and refine their work." Announcing the Northwestern Colloquy, Northwestern University Law Review, Oct. 7, 2006
PENNumbra (University of Pennsylvania Law Review)
"PENNumbra seeks to engage a broader audience in legal scholarship by serving as a link between legal academia and the 'blogosphere.' The site features downloadable articles from the print edition of the Law Review, brief scholarly responses to those articles, and online debates on topics of current interest." Press Release, University of Pennsylvania Law Review, Sept. 5, 2006
See Also (Texas Law Review)
"See Also is an online companion to the Texas Law Review that presents responses and critiques of recently published articles in the Review. For each issue of the Review, See Also features responses from members of the academic community and practitioners, styled as op-ed pieces, in order to promote further discussion of the topics addressed in the Review. In addition, See Also provides a forum for our readers to offer their own thoughts and perspectives."
Slip Opinions (Washington University Law Review)
"Slip Opinions is an online supplement to the Washington University Law Review featuring original commentary and debate by members of the legal academy, bench and bar."
TexSupp (Baylor Law Review)
"The staff of TexSupp strives to provide our readers with insightful legal literature including essays, book reviews, responses and letters to the editor."
Yale Journal Pocket Part (Yale Law Journal)
"As members of the legal community know, legal publications often contain "pocket part" supplements with up-to-date information. The Pocket Part plays an analogous role by augmenting the scholarship printed in The Yale Law Journal. It provides original essays and responses to articles printed in the Journal."
In addition, a commons has been created on a popular legal web log to showcase these new journals.
* Law Review Forum Project (Concurring Opinions)
"[W]e have invited a number of law reviews to participate in a partnership with our blog. Throughout the year, each law review will periodically post forum essays here at Concurring Opinions." Announcing the Law Review Forum Project, Concurring Opinions, April 24, 2007. The participating law reviews include:
* Harvard Law Review
* Virginia Law Review
* Michigan Law Review
* University of Pennsylvania Law Review
* Northwestern Law Review
* UCLA Law Review
* George Washington Law Review.
More law reviews across the country are planning to develop online companions, e.g., Illinois Law Forum (University of Illinois Law Review), so we can expect to see their numbers grow. See generally Legal Scholarship Goes Online, Virginia Law Weekly, Feb. 9, 2007. And legal publishers outside academia have already begun hosting their own versions of short-form scholarship and opinion pieces. See, e.g., Findlaw Writ.
Resources
These sites provide information about online, print and other permutations of law reviews and legal scholarship, and the availability of electronic access.
* Current Law Journal Content (Washington & Lee Law School)
* Ejournals (Duke Law Library)
* Law Blog Metrics (Professor Blogs Network)
* Law Journals (University of Southern California)
* Law Journals (WashLaw Web)
* Law Journals: Submissions and Ranking (Washington & Lee Law School)
* Law Periodicals Blog (Washington & Lee Law School)
* Law Reviews Online (Library of Congress)
Social Science Research Network (SSRN)
University Law Review Project
http://www.llrx.com/features/shortformjournals.htm
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