Barrister's blog

Cape Wellness Collaborative and Cape Cod Women's Music Festival

About a year ago, I met with one of the Cape's talented musicians, Sarah Swain. Sarah discussed her mother's battle with cancer and her dream of creating an organization on the Cape that could provide integrative therapies for patients confronting cancer treatment. Not only assist with funding, but also be a resource and create a network of providers that provide the therapies and services.

Well; after a year of careful planning; including the selection of a fantastic and dedicated board of directors, we've founded the Cape Wellness Collaborative. Our kick off fundraiser is the third Cape Cod Women's Music Festival, which will be held on May 17 at the historic Cape Cinema in Dennis. Our headliner performers are Sarah Lee Guthrie and her husband Johnny Irion, but the festival will also include a lineup of great local performers, including Sarah and the Oh Boys. Zoe Lewis will be our Master of Ceremonies. Also expect some surprises! Music, food, drink and fun for a marvelous cause.

Please check out our websites at capewellness.org and capecodwomensmusicfestival.com. You'll find a great deal of info about our new organization, the services we'll provide and the festival. We hope you'll purchase tickets!!

I'd also like to thank the caring and committed board members that have worked so hard to get this project  off the ground and the business sponsors that are helping us with their support.

Cape Wellness Collaborative and Cape Cod Women's Music Festival

About a year ago, I met with one of the Cape's talented musicians, Sarah Swain. Sarah discussed her mother's battle with cancer and her dream of creating an organization on the Cape that could provide integrative therapies for patients confronting cancer treatment. Not only assist with funding, but also be a resource and create a network of providers that provide the therapies and services.

Well; after a year of careful planning; including the selection of a fantastic and dedicated board of directors, we've founded the Cape Wellness Collaborative. Our kick off fundraiser is the third Cape Cod Women's Music Festival, which will be held on May 17 at the historic Cape Cinema in Dennis. Our headliner performers are Sarah Lee Guthrie and her husband Johnny Irion, but the festival will also include a lineup of great local performers, including Sarah and the Oh Boys. Zoe Lewis will be our Master of Ceremonies. Also expect some surprises! Music, food, drink and fun for a marvelous cause.

Please check out our websites at capewellness.org and capecodwomensmusicfestival.com. You'll find a great deal of info about our new organization, the services we'll provide and the festival. We hope you'll purchase tickets or consider a business sponsorship!!

I'd also like to thank the caring and committed board members that have worked so hard to get this project  off the ground and the business sponsors that are helping us with their support.

Lawyer Conducted Jury Voir Dire is here in Mass. What Do You Think?


Starting this month, for the first time in Massachusetts judicial history, lawyers will be able to ask questions of potential jurors. The purpose of lawyer conducted voir dire, which is standard practice throughout the rest of the country, is to try to make sure we seat unbiased, objective jurors. So, for example, we might ask questions about your experiences with physicians to see if you could find against a physician in a medical negligence case involving serious injury or loss of life.


Until this statutory change, which trial lawyers in Mass have been fighting for for over 30 years, only the trial judge would ask questions, most of them standard, i.e do you think you could be objective in this case; do you think you could be fair and impartial? Recently, some judges have allowed lawyers to ask a question at sidebar, but in very limited fashion. Then; we look at the one page questionnaire, make a judgment call and cross our fingers, hoping we haven't seated someone with an inherent bias regarding the case, or someone that has not been truthful in answering questions.
If anyone has an opinion, I'd be curious to know how people feel about a more open process before a trial to ascertain true objectivity and lack of bias where the trial lawyer can ask you questions, but still under the supervision of the trial judge.

Bruce

Dear Mother Nature

Dear Mother Nature:

 We in New England apologize. We apologize for the success of the NE Patriots and all the other championships (special mention for Brady, Wilfork, Edelman, Gronk and Butler) for our first class educational institutions; for the beauty of the Cape and Islands to northern Maine, etc, etc.


But, with all due respect, enough is enough.
The T can't run; the courts are closed, my clients are frustrated, business everywhere is suffering, bus stops are unsafe for children, and life is coming to an abrupt halt.
Yes; we say we're hardy New Englanders (although I Left the Bronx in 1968), but that's really just nonsense. How many damn roast chickens, soups and stews can one make in the winter? Have you ever tried to park in Boston when there's no place to put the snow?


My sister and brother in law just moved here from FL and now curse me!


So anyway Mama Nature; I surrender. Can I represent you at a discounted rate? Whatever...we know you can't mess with Mother Nature; but a reprieve would be welcomed. I owe you a Martini and a Lobster Roll...if you do the right thing, of course! 

Bruce

Home Improvement Contractors and Consumers Beware

Of course, all home improvement contractors are or should be aware of the provisions of MGL ch 142A. The statute requires registration by contractors as well as requirements for home improvement contracts.

Massachusetts Lawyer Weekly reported this week that a Superior Court trial judge has ruled that a contractors failure to register, in and of itself, constituted a "separate" injury and violation of MGL ch 93A, the Massachusetts Consumer Protection statute. Such a separate violation could result in the assessment against the contractor for triple damages and attorneys fees.

In the case, the consumer argued that the failure to register deprived her of the right to submit a contractor dispute to arbitration under the Home Improvement Contractor Arbitration Program (HICARB). The court ruled that the failure to register caused her harm as the arbitration program was a central feature of ch 142A.

Obviously, the lesson here for contractors is that not only must they register, but that they must also follow the statutory requirements for their contracts. Even if registered, if the contracts do not comply with the statute, there may also be a 93A violation. For consumers, the obvious lesson is to make sure they are dealing with a registered home improvement contractor, request references from the contractor and also make sure that the contract you are provided complies with ch142A. There are multiple resources on the internet that you can research regarding the statutory requirements.

So; You Think Your PreNup is Enforceable?

It's a commonly held view, even among many family law lawyers, that PreNuptial Agreements will usually hold up under all circumstances. However, as recently reported by Massachusetts Lawyers Weekly, the Supreme Judicial Court (SJC) reiterated maybe not.

In the case of Kelcourse v. Kelcourse, the SJC ruled that under the "second look" doctrine, which the court adopted in a case in 2002, a change in circumstances may render a prenup, in whole or in part, unconscionable and unenforceable.

In the case, a house owned by husband and wife, and left to the wife in the prenup, had become rundown and decreased significantly in value. The trial judge concluded that although the prenup was valid when executed, it had become unenforceable because the subsequent neglect constituted a change in circumstances. The judge stated that enforcement of the agreement would have left the wife without sufficient property to support herself.

So; while the standard of proof required to invalidate a prenup is still very high in Massachusetts, it also illustrates how careful lawyers must be in drafting the agreements with an eye towards equity and fairness and also give consideration to foreseeable events that may occur in the future. 

These are all issues that be addressed by an attorney competent in drafting these types of agreements.

Remembering Brothers and the Gosnold Steven Miller House

In today's CCTimes, my friend, Dan McCullough penned a beautiful piece about the loss of his brother Bobby. It reminded me of my own memory.

You ever drive by a house or a memorial named after a person and wonder who the person was? Here's a little story about a place on the Cape.

I never had a brother. But; growing up in the Bronx, I did have a big brother/uncle. He was my idol (along with Mickey Mantle). He had spinal meningitis as an infant and became deaf. However, he overcame youthful hurdles and became a marvelous athlete. He became a star windmill pitcher in the NY park league and actually pitched against the great Eddie Faner and the King and His Court. He was truly a King.

He went to hearing schools, including New York University, and excelled at everything he did. He acquired an engineering degree and ultimately went to work for Boeing in Philadelphia designing helicopters. He was talented, brilliant and his smile filled every room into which he walked. Everytime we got together, we'd pitch to each other. Throughout his life, he was such an expert lip reader, I never fully learned to sign, which I've always regretted.

As his thirties approached, he struggled with his deafness, depression and alcoholism. He sunk deeper into despair. He received treatment, once at a facility in Falmouth. Ultimately, we lost Stevie to suicide.

So now you know. When you drive by the Gosnold Steven Miller House in Falmouth; you'll know that it's named after my big brother/uncle Stevie.

Juries, Bumper Stickers and Society

In the movie The Judge, in jury selection involving a murder charge against his father (Robert Duvall, The Judge) Robert Downey Jr. uses an old tactic. He asks the jury pool who has a bumper sticker on their car, and then makes decisions based upon the bumper stickers disclosed by the potential jurors. Simplistic; yes; off the wall, no.
If nothing else, the OJ trial had much to do with alerting the general population to the fact that juries in this country make mistakes. This occurs in both civil and criminals trials. Every experienced trial lawyer will tell you (if they're honest) that they have won cases they should have lost and lost cases they should have won. As we tell every client, letting a case go to verdict is no different than rolling dice in LasVegas. You never know what a jury will do. I have tried cases before "mock juries" and seen jurors discuss in videotaped deliberations everything other than what you think they would be discussing. Frustrating...but fascinating.
So; are people frustrated over recent Grand Jury decisions in race based cases? Of course. But; those decisions do nothing more than mirror societal attitudes and prejudices. So...don't blame our system, which albeit flawed, is the best in the world. Trial lawyers both love it and hate it. Words cannot describe what the trial lawyer feels when you learn that the jury has reached a verdict. But, we all know that many jury decisions have no concrete explanation. If you want changes; look to society, not to the system.
I've been trying cases for 32 years. I don't ever make predictions. But I do know that, just like Robert Downey Jr. in "The Judge", bumper stickers on cars and trucks may tell us more than we may like to admit.

When Negligence Results in Tragedy/ Accountability and Responsiveness

For my entire career, I have handled cases in which negligence results in tragic loss. A pharmaceutical company that markets a drug it knew could cause death (my hemophilia/AIDS cases being one example) ; a drunk driver killing or maiming an innocent driver or pedestrian; a rapist that changes the life of a victim forever as a result of a violent act. I have had all those cases and I could go on. They all also change the life of the lawyer because you share and live with the pain of the victim. They all cry out for Accountability on the part of the wrongdoer. That accountability is an essential component of our civil and criminal systems of justice.

Perhaps it's because I drove by the site where Mr. Barros Jr. died within minutes of the occurrence and wondered who had been in that car and saw the possessions of the car strewn about the landscape. Perhaps it's because I felt something like this would occur when I first saw the clear cutting. But the senselessness of this particular loss should outrage all of us.

Of course, there's a responsible driver. However, it is my sincere hope that an independent investigation is conducted in which all contracts, schedules, time records, payments, electronic communications, authorizations and all other relevant evidence is disclosed so that this family and the public knows what happened here. And if heads roll or people go to prison for their criminal negligence (if found to exist) it may provide this family with a margin of justice. Whoever the lawyer is for the family should not have to do this work on his/her own.

Nothing can bring back Ms. Barros' husband or his children's father. But, at the very least, they are entitled to responsiveness on the part of our government, as well as justice and accountability.

The NFL, Domestic Violence, Sexual Assault and "Boys Will be Boys"

The Ray Rice video, and the NFL's first reaction to it is merely the latest disturbing example of the "boys will be boys" attitude that still is so prevalent in our society. It's also the same attitude that has has resulted in college's to take so long to even acknowledge, or address, the issue of sexual assault on campuses.

As only one example, I recall so well a divorce case I had years ago involving a Patriot AllPro. His wife showed up at my house in Stoughton one evening; face swollen and with a scratch on her face from a house key. The next morning we appeared in Stoughton District Court to get a Restraining Order. The judge held the hearing in chambers because of the media at the courthouse. Only after the judge inquired about the Patriots game the next Sunday, did we get the restraining order. Afterwards, the player was swarmed by the adoring public. At the time, Raymond Berry (a kind man) was the coach and I did receive calls from the Patriots front office. However, the calls were more addressed to damage control than concern for the players wife. This was over 25 years ago.

There are far to many examples of this societal problem. How many Jennifer Martels are there that we haven't heard about or college rape victims that have been ignored? And it's not just self important athletes.

It has to stop and it won't stop until we all recognize that "boys will be boys" is not an acceptable answer.

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