Barrister's blog

Can You Complain About Your Boss on Facebook?

Ahh. Social networking
New cases and issues popping up every day
Enough to make a trial lawyer salivate

Anyway...last week, an administrative law judge ruled that a Buffalo NY employer violated the National labor Relations Act (NLRB), when it fired five employees who talked about their boss on Facebook.  Concluding that Facebook posts constituted protected free speech under the NLRA, Judge Amchan stated that "Employees have a protected right to discuss matters affecting their employment amongst themselves...Explicit or implicit criticism by a co- worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected." He also found that the posts were not harassing or threatening.

Of course, this is an NLRA decision and applies to employees, i.e. union members, covered by the act. In Massachusetts, workers that are not unionized are largely either at will or contract employees. At will employees can be terminated for any reason, as long as the reason is not discriminatory or otherwise violates public policy. If the decision is not overturned, could a termination of this type be against public policy in Massachusetts? Certainly possible.

A very interesting decision for employers and employees alike. More to follow. Anyway; as I advise employers and employees; if you don't want something to be public...don't put it in an email  or public Facebook post. Private messages, if discovered, can even be used against you. A good example...a person claiming injury in a car accident case that posts on Facebook that she's going skiing that weekend!

 Bruce

Lender Held Responsible (Finally) For Representations During Loan Modification Process

Our office receives many inquiries from borrowers that become frustrated with the chaos involved in the loan modification process. Well; a Massachusetts federal court judge recently issued a ruling the may assist homeowners during this process.

As reported by Massachusetts lawyers Weekly,in the case of Dixon v. Wells Fargo, Judge Young has issued a preliminary ruling that homeowners that relied on lenders instructions to discontinue payments on their mortgage in order to be considered for a modification can proceed with a "promissory estoppel" claim to halt foreclosure because the lender failed to abide by it's promise to bargain. Promissory estoppel is an equitable theory that basically prevents a party from denying or asserting something that is contrary to their own acts or representations. If one party relies on those representations to their detriment, the other party is "estopped" from denying the earlier representations.

Judge Young stated in his opinion that "foreclosure is a powerful act with significant consequences...and where a bank has obtained the opportunity to foreclose by representing an intention to do the exact opposite, i.e to negotiate a loan modification that would give the homeowner a right to stay in his or her home, the doctrine of promissory estoppel is properly invoked under Massachusetts law to provide at least reliance based recovery."

Given the significance of the case nationally, it has been scheduled for a speedy trial in September.

Perhaps lenders will finally be held responsible, at least in part, for the chaos they have inflicted upon homeowners and our economy since the onset of the subprime crisis.

Bruce

Outer Cape Health Services: An "Economic Engine"

During the past one and a half years that I have been President of OCHS, I repeatedly talk about the economic impact of OCHS on the local economy. Of course, we provide essential health care services to the patient population we serve between Harwich and PTown.

However, I was pleased to see today a report from "Capital Link", a division of the National Association of Community Health Centers. The report is titled "The Economic Impact of Outer Cape Health Services". It states that:

a) OCHS injected $6.7 million of operating expenditures directly into the local economy, and stimulated additional indirect and induced economic activity of $4.4 million;

b) OCHS had an overall economic impact of $11.1 million;

c) OCHS directly generated 116 jobs; and,

d) OCHS supported an additional 38 jobs in other industries.

So; when you hear about the cutbacks that will be considered by the new joint congressional committee, consider the above numbers. We're not just keeping you healthy!!

Bruce

Wellfleet Alzheimers Association

This is a new non profit that I formed this year with a fantastic group of Wellfleetians that wanted to focus on the needs of outer cape residents. This is only our second fundraiser as a new organization. It will be a great time with fantastic silent auction items (including a gift certificate from this lawyer!). OK; no more non legal blogs today. Sorry!

Bruce

Yes; The REAL New Orleans Preservation Hall Band at OUR Prez Hall!

Lot's of great events coming up at Wellfleet Preservation Hall; including the New Orleans Preservation Hall jazz Band. Doing anything better on a Tuesday night?

Bruce

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UPCOMING EVENTS

Featured Article
johnathan Kendall
Be sure to stop by the Hall and see the Johnathan Kendall Exhibit...a collection of woodcarvings by the creator of our iconic doors.  Twelve of the exhibit pieces are available for auction at our online auction site.

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Proceeds from the auction benefit Wellfleet Preservation Hall.

 

Greetings!

 

BIG NEWS THIS WEEK...in case you have not already heard...the Preservation Hall Jazz Band , THE Preservation Hall Jazz Band...the one from New Orleans...the real deal Preservation Hall Jazz Band is coming to Wellfleet next Tuesday...presented by Wellfleet Preservation Hall!  They are honoring our inaugural season with a concert on their way to Lincoln Center (yes, that Lincoln Center...) 

We are very excited and honored to be presenting this world-class band and know that this is going to a be a sell-out show. So...don't delay...get your tickets now on our website ...no service or ticketing fees...and the proceeds benefit Wellfleet Preservation Hall!

 

Hope to see you soon!

Janet

Janet Lesniak

Managing Director

 

 
 

DIRECT FROM NEW ORLEANS!

PRESERVATION HALL JAZZ BAND 

 

Preservation Hall Band Photo

 

TUESDAY, AUGUST 2

7:30 PM

  

IN CONCERT AT  

THE FIRST CONGREGATIONAL CHURCH IN WELLFLEET

200 MAIN STREET - WELLFLEET

 

$35 General Admission        

$75 Preferred Seating & Reception

 

(no ticketing or service fee!) 

 

BUY TICKETS HERE!

 

 

 

 
OPEN MIC NIGHT

THURSDAY,

JULY 28

@ 7PM

 

sign-up opens

@ 6:30 pm 




 
LIVE THEATER THIS WEEKEND!
CAPE COD THESPIANS PRESENT...

'UNDERNEATH THE LINTEL'

FRIDAY, SATURDAY & SUNDAY, JULY 29,30 & 31 @ 8PM


underneath the lintel 

A one person play about an obsessive librarian who embarks on a
relentless worldwide mission to collect the overdue fine of all time on a book that was returned after 113 years.  The clues he gathers begin to lead him, and us, toward a far
greater mystery, until he makes an utterly unexpected discovery.   

  

"a tale of a picaresque journey that evolves into a spiritual quest . . . a
wonderful metaphor for life's exclusive but inextinguishable meaning,"   

Bruce Weber, The New York Times. 

   

CALL 774-487-0006 FOR TICKETS TODAY! 

 


sponsor logos



Wellfleet Preservation Hall, Inc | P.O. Box 3024 | 335 Main Street | Wellfleet | MA | 02667

 

Shakespeare and Shemekia at Payomet!

WARNING: This post has nothing to do with politics or the law. However, we still need to play and there are a couple of posts coming about entertainment. Winter's Tale has had knockout reviews, and anyone that has seen or heard the next queen of the blues wouldn't miss her!




“ Your actions are my dreams ”
WILLIAM SHAKESPEARE'S
THE WINTER’S TALE

Wondrous - and busy - cast triumphs in 'Winter's Tale'"
..
"...a not-to-be-missed evening of summer theater."
..
"...thoroughly entertaining production."
- Cape Cod Times

Read Catherine Houser's Rave Review Online in the Cape Cod Times

Opens Wed, July 20
through August 13

co-directed by Tessa Bry & Will Sturdivant

Cast:
Tessa Bry
Melanie Freedom Flynn
Jake Ford
Ben Griessmeyer
Robin Russell
Will Sturdivant
Nathaniel Taylor
& Ruby Wolf

Jealousy, lust, revenge, redemption and, yes, a good dose of romance and comedy, make The Winter's Tale one of Shakespeare's most beloved works. 

Set in the enchanted lands of Sicilia and Bohemia, this fully staged gorgeous Payomet production weaves deep pathos into a story of warring kings, powerful women, families torn apart by suspicion... and the eternal rebirth of hope.

If you see just one play this summer, then make it this rarely staged epic performed by one of the most exciting and brilliant young casts ever assembled on Cape Cod.

July 20, 21, 22, 23, 27, 28, 29** & Aug 3, 4, 5, 10, 11, 12, 13
Curtain 7:30 pm

Tickets: $26-$35
$5 discount for Students, Teachers, Union Members & Outer Cape residents

50% Student Rush (1 hour before show)
All discounts and Student Rush tickets available at Box Office ONLY




**Fri, July 29 Performance + Party.


Join us on the 29th to Meet & Greet the cast and directors immediately following the performance over wine and hors d’oeuvres. $75


Sponsored by:

Soul of the Seashore Concert

Cape Air, WOMR, and Payomet invite you to celebrate the 50th Anniverasy of the Cape Cod National Seashore on August 7 with

The New Queen of Soul and Blues and her world renouned band !

August 7
7:30 pm

Shemekia Copeland
- Soul/blues diva and her phenomenal band.

Blues queen Shemekia Copeland rocked the Congregational Church in Wellfleet to its foundation last February, and we’re bringing her back for one of our biggest dates this summer, August 7th, marking the 50th anniversary of the Cape Cod National Seashore. Shemekia released her debut album at 19 and was met with unanimous and hearty praise from the likes of the Boston Globe, who declared that

“she roars with a sizzling hot intensity,”

and the Village Voice, who lauded her as “nothing short of uncanny.” Since then she has risen steadily in the echelons of the blues, opening for the Rolling Stones, starring in the Chicago Blues Festival, and playing alongside B.B. King, Taj Mahal and Buddy Guy. With a voice that harkens back to Ella Fitzgerald and Etta James, Shemekia Copeland has soul to burn.



BECOME A PAYOMET PAL !

Grown Up Party/ Further Detail

In response to blogger "Wise", and others.

The Grown Up party, while somewhat tongue in cheek, is more of a forum than a political party, per se. It professes to cross ideological lines and require a base level of maturity and civility when doing the business of the country. You could be a tea party follower or a liberal democrat and be a "member" of the Grown Up party, as long as you insist upon accountability on the part of elected officials that behave like children.

For years, I have belonged to a bar group known as the "Inns of Court" (although my Cape Cod non profit commitments this year forced me to take a one year leave).  The group, started in England,  seeks to foster civility in the practice of law. Judges and lawyers meet monthly at dinner to discuss current issues, and create educational programs for lawyers that advance the cause. I have found my membership in the Boston group to be very worthwhile and some of my best lawyer friends have been lawyers that I have tried cases against over the years.

While some may view it as pie in the sky, why not let elected representatives know that the electorate requires a floor of respect and decorum in political discourse, when the future of the country and families hang in the balance? Disagreement and philosophical differences will, of course, always be present. Vive la difference! But please...let's not allow them to behave like children rather than like "Grown Ups".

Bruce

A New Political Party: The "Grownup" Party - Further thoughts

A New Party to solve our New Problem

Anyone wondering or concerned about what will happen to their retirement plans next week if a deal is not cut on the debt ceiling?

I'm considering forming a new political party known as The "Grownup" party. It will consist of folks of all political persuasions that are capable of behaving like "Grownups" and acting in the best interests of the country.

Actions such as walking out of meetings when the fate of the country hangs in the balance will not be permitted. If you are an elected representative and fail to behave like a "Grownup", you will not be paid. Anyone interested?

Further thoughts:

In response to blogger "Wise", and others.

The Grown Up party, while somewhat tongue in cheek, is more of a forum than a political party, per se. It professes to cross ideological lines and require a base level of maturity and civility when doing the business of the country. You could be a tea party follower or a liberal democrat and be a "member" of the Grown Up party, as long as you insist upon accountability on the part of elected officials that behave like children.

For years, I have belonged to a bar group known as the "Inns of Court" (although my Cape Cod non profit commitments this year forced me to take a one year leave). The group, started in England, seeks to foster civility in the practice of law. Judges and lawyers meet monthly at dinner to discuss current issues, and create educational programs for lawyers that advance the cause. I have found my membership in the Boston group to be very worthwhile and some of my best lawyer friends have been lawyers that I have tried cases against over the years.

While some may view it as pie in the sky, why not let elected representatives know that the electorate requires a floor of respect and decorum in political discourse, when the future of the country and families hang in the balance? Disagreement and philosophical differences will, of course, always be present. Vive la difference! But please...let's not allow them to behave like children rather than like "Grown Ups".

Bruce

A Barnstable Verdict In "A Case of Suicide"and Many Unanswered Questions

On Thursday June 16, a jury in Barnstable Superior Court returned a verdict in a case I had been working on for 7 years. The name of the case was Callahan v. Jellinek. The jury found that Dr. Theodore Jellinek, a Sandwich psychiatrist, was negligent in his treatment of Mary Callahan, but that his negligence did not "cause" Mary's suicide. I represented the family.

Mary Callahan was a retired registered nurse that had been living in Orleans for many years with her husband, Charlie.  Charlie was a retired firefighter from NYC. Mary was 57 at the time of her death in 2003.  They had raised 4 beautiful daughters and owned an Irish specialty shop in Chatham that they worked together, "The Song of Ireland".

After a foot injury in 2002, Mary became depressed. She had never treated with a psychotherapist or psychiatrist in her life. The psychotherapist suggested that she treat with a psychiatrist when she mentioned thoughts of suicide. From October 2002 through April 25, 2003, Mary treated with Dr. Jellinek. She presented to him with symptoms of Depression, Anxiety and Insomnia. During that time period, he gave Mary samples of Celexa, Lexapro, Zoloft and Wellbutrin, and stopped and started the meds on multiple occassions. It was not disputed that Mary never reached a therapeutic level of any medication. She had stopped the meds on a couple of occasions as the result of troubling side effects. Three days before she committed suicide, she was given a prescription for an anti anxiety medication for the first time.

The case involved a high drama battle of dueling experts from Harvard. Dr. Joseph Glenmullen, Mary's expert (author of two books on the proper use of SSRI antidepressants) testified, quite simply, that during the initial use of SSRI's,  anxiety and insomnia can worsen. Therefore, the standard of care required that Dr. Jellinek also treat Mary's anxiety and insomnia, with an anti anxiety medication or sleep aid. Those measures would enhance the likelihood that the anti depressant would prove effective.

Dr. Jellinek's expert was Alexander Bodkin, the head of PsychoPharmacology at McLean. He ackowledged that McLeans receives millions in support and grant funding from big pharma. Dr. Jellinek had also admitted that he was considering being a speaker for Forest labs (Celexa and Lexapro)  at the time he was treating Mary. In summary, Dr. Bodkin opined that Dr. Jellinek complied with the standard of care by administering anti depressants alone in the hope that they alone would affect the depression, anxiety and insomnia that continued throughout the 6 month course of treatment. He also suggested that there was no explanation for Mary's suicide and that it was not preventable.

The case also presented very important questions regarding what information the patient should have been given before taking the medication. Dr. Jellinek stated that he did not remember telling Mary about any of the  side effects of the medications he administered. His medical records did not reflect any such information given to the patient.

I am admittedly summarizing 4 lengthy days of testimony during a 5 day trial. The verdict of Negligent "yes", but causation "no" is the bane of every plaintiffs' attorney that tries these high risk cases. In essence, you have proved your case, but the jury remains confused about the actual cause of injury. I still have much to think about, and questions regarding an appeal will be considered by Mary's family. However, there remain many unanswered questions:

a) In the jury pool, 31 out of 60 jurors had had experience with anti depressants; something I found astounding. What does this say about our societal reliance on these drugs, along with their serious side effects? 

b) Is suicide preventable? Dr. Glenmullen felt that it is  preventable, although certainly not in all cases,  with the proper use of appropriate medication and/or behavioral therapy. Of course, he also opined that if you are going to presrcibe antidepressants, the patient must be carefully monitored. In my opinion, after 7 years of reading various texts and learning about the treatment of depression, I believe that it can be preventable with appropriate, carefully monitored care. If not, as a society, why are we  wasting billions on medication to treat depression and anxiety. Why not just give everyone placebos and hope for the best?

c) Can a jury overcome societal beliefs about suicide, i.e "the ultimate selfish act", or a "mortal sin"? Must the victim always be blamed. How can these questions be dealt with in jury selection?

d) Should doctors be required to have patients engage in psychotherapy while they are taking antidepressants?

As I stated to the jury in closing argument, I was privileged to be able to speak for Mary Callahan and tell her story. However, I remain troubled by the many issues addressed during the course of the trial. Yesterday, I saw a new study that showed that the suicide rate among males, age 21-34, that were taking anti depressants, had increased by 155% in recent years.Amazing! In fact, of people that actually commit suicide, 60-70% that are successful have underlying depression.

I intend to post more as I consider Thursday's results. As for the reader, as the well financed drug company commercials state, "talk to your doctor"...and always ask questions.

Bruce Bierhans

Our New Office/ 540 Main St, Suite 17 Hyannis

For the past ten years, I have commuted at least three days a week to our main office in Stoughton, and then in Easton.  My main office has not been outside of Greater Boston since 1987. That all changed this week!

Ten years of having satellite offices in Wellfleet and Chatham finally convinced me that a move of the main office to Hyannis was warranted. I have found the legal and charitable work I have done on the Cape to be both stimulating and challenging.Of course, having two extra hours a day was additional motivation.

Wellfleet will remain open to better serve our outer cape clients and I will maintain office hours in Wellfleet as needed.  We will continue to use the Easton office to serve off cape clients. However, our attorneys and support staff will now operate out of the Hyannis office. Our new tel. no is 508-775-4500; fax 508-775-4511. Main email is bruce@bierlaw.com. We're right next to Fitness 500 on the North Street side of the great 540 Main complex.

Everyone is welcome to stop by and say hello!

Bruce

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