Wednesday, August 22, 2018

FANTASY SPORTS: LEGAL OR ILLEGAL SPORTS GAMBLING


                Fantasy Football is gearing up, and we are on the eve of many drafts and leagues forming for the new season. As attorneys, we often get asked about the legality of sports gambling and in particular, fantasy sports. As some of you are aware, the U.S. Supreme Court struck down a gambling ban from 1992 called the Professional and Amateur Sports Protection Act. Thus, sports gambling is no longer illegal under federal law. However, each state can have laws that restrict or forbids gambling within their state borders. As for fantasy sports, that has been dealt with separately.

                As of May 16 of this year, fourteen (14) states have specifically allowed fantasy sports, and daily fantasy sports to exist (SEE: http://www.espn.com/chalk/story/_/id/14799449/daily-fantasy-dfs-legal-your-state-state-state-look). New Hampshire is one of those states, as Governor Sununu signed the bill into law on July 18, 2017.

                As noted here, the law provides the following:

·         Regulation of the industry will fall to the New Hampshire lottery commission, which is given the power to promulgate some rules to oversee the industry.
·         There is no fee or tax for operators that register with the state. An earlier version of the bill had both an upfront fee and a tax on revenue.
·         Operators must register with the commission, but may continue to operate in the state while the law is taking effect, if they apply for registration.
·         The law sets up basic consumer protections for users at registered DFS sites, including a ban on employee play; the segregation of player funds and operational funds; and responsible gaming protocols.
·         The minimum age for users is 18.

                Thus, daily fantasy sites like FanDuel and DraftKings are specially legalized in the State of New Hampshire. Most importantly, the law mandates you must be eighteen (18) years of age, and provides consumer protections to those using those sites.

                Fantasy sports is something many of us are involved in, and it’s evident that right now all of those that play are not in danger of breaking the law. However, laws can change quickly, and it’s important to know your rights. Here at Parnell, Michels & McKay, we keep ourselves updated on the developments in the law to help he assist all of our clients dealing with legal issues. Contact us today if you need help navigating the legal playing field.

Wednesday, August 8, 2018

Self-Drivings Cars and the Intersection of Human Negligence and Products Liability


                Self-Driving cars are now becoming more and more popular. Other states, like California, are now allowing them to be operated on their roads in controlled settings. For many of us, this will remind us of movies involving cars that drive themselves while the human in the car is able to relax on their drive. It’s almost like a taxi, but it’s the person’s car and a computer program is driving. Technology is always a fascinating thing, but in this context, what happens when self-driving cars cause an accident?

                As many people are aware, if you cause an accident and are liable, an insurance claim and possible litigation may be brought against you. This would require the person that was hit and injured to prove that the other driver was negligent, and that this negligence caused the collision and the injuries to the Plaintiff. But what about if the car was self-driving?

                This makes these cases potentially much more complicated. First, there is typically a requirement that any self-driving car have a human that is alert and attentive at the wheel. If the collision with a self-driving car is caused by the human’s inattention, then a negligence theory will still work. Second, however, is much more complicated. If the car crash was caused by the computer program, then the negligence standard will not work in the traditional sense. In this case, the likely remedy is a products liability claim. Products liability claims require proving manufacturing defects, design defects, or warning defects. In this sense, the fault in a computer program likely involves the first two (manufacturing and design defects). A manufacturing defect involves a problem that occurs when the product is being manufactured, or created. A design defect is when the design itself is problematic.

                In either circumstance, to prove a self-driving car acted in appropriately will likely involve a blend of negligence and product liability laws. While New Hampshire and Massachusetts aren’t currently dealing with an influx of self-driving cars, it is likely going to happen in the coming years.

                If you are injured by any driver (even a computer), the experienced attorneys at Parnell, Michels and McKay can help you. Contact us if you find yourself in a situation where you need to know your legal rights.

Tuesday, July 24, 2018

Adoption - A Personal Perspective by Anna M.


Adoption is about what is best for the child not what is best for the parents. As the law states, a child’s needs should come first, or better put, the best interests of the child should come first. The best situation for a child is sometimes to be adopted into a stable home. Financial security and the love of caring parents are both important to a child’s development. The time spent raising a child affects how the child behaves, feels, and ultimately interacts with the world as the person they become. Many factors play into the decision of what is best for the child. It can be hard for birth-parents to give up their child, but adoption can sometimes be the in the best interest of the child. The child may be afforded a better opportunity with adoptive-parents that love them just as much as or more than the birth-parents and can give the child emotional security and stability.
            Yet, the question often remains, will the child end up knowing their birth-parent? Or better put, is open adoption or closed adoption the best option? Often there are legal issues where the decision is out of the hands of the birth-parent. However, in a lot of situations the choice between open, closed, or semi-open adoption and the degree to which it is open is decided by the birth-parents and adoptive-parents. For those who do not know what open and closed adoption is, open adoption is when the child knows the birth-parents and can even have a relationship with them, while closed adoption is when the child is unaware of who their birth-parents are and the birth-parents do not know who adopted their child. Semi-open is a blend of both.
            Closed adoption can be good for both birth and adoptive parents, and depending on the situation, the child. In a closed adoption, the adoptive-parents do not have to worry about the influence of the birth-parents on the child, and the birth-parents can move on from what they gave up since they are not involved in the child’s life. Closed adoption can also be good for the child in that the birth-parents could be a bad influence and could impact their development in a negative way. However, the child would go through their life not knowing about where they came from and will wonder where they would be if they weren’t adopted. They will also wonder who their birth-parents are, and that can create a fantasy parent. This is when a child imagines who their parent was, and creates an unrealistic person in their mind. Moreover, just like fear of the unknown, not knowing who their parents are can haunt someone and affect their emotional development, relationships with others, and their connection to the parents that actually raised them.
            Open adoption can be good for all parties involved. The birth-parents can still see their child grow up and see the good situation their child is in and that they made the right decision to give them up for adoption. However, the birth-parents might be upset that they are not raising their child themselves. Despite the possible emotional issues with the parents, the child gets to have some closure and a possible relationship with their birth-parents. Instead of wondering for the rest of their lives where they came from, who their parents are, and what their life could have been like, the child has peace from the knowledge they receive from having their birth-parents in their life. However, this can create conflict between birth-parents and adoptive-parents, and is a big factor in deciding what type of adoption is best. Moreover, there may be behavioral issues with the birth-parents that caused the adoption in the first place that may make an open adoption untenable.
I can attest to the idea of constant wondering, as I am adopted. I was adopted at birth by two amazing parents and into a wonderful Christian family with two of the best older brothers a sister could ask for. I do not doubt for a second that I am in the best situation. However, that does not eliminate the wondering I have. I have always been curious as to who my birth-parents are, how my life would turn out if I wasn’t adopted, and how much of who I am comes from my biological parents. I don’t know about anyone else, but not knowing things, especially big things such as this, can cause me a lot of stress and anxiety. My mind wanders and flies around looking for answers, only it feels I am never able to land on solid ground. An outsider might say it’s looking for the part of me that has always been missing. There’s something about the biological connection one has to family that you don’t know is absent until you are in a situation like mine. Now, my adoptive parents are my parents. They’re the ones who raised me and they’re the ones who take care of me. But that doesn’t mean I don’t feel as though something’s missing. Not to mention, everything could have turned out differently. Every argument, every fight, every bad outcome is made worse by the idea that there was a possibility it couldn’t have happened. I could have been adopted into a different family or I could have just not been adopted and this whole problem that’s causing me pain could have never happened in these other scenarios. However, just like I wonder about the good that might come from not being adopted, there is also bad.
I say all this because I strongly believe that if I had the opportunity to meet my birth-parents, the wondering would stop. The mystery would be solved. I would have reached the understanding  that I am where I’m supposed to be a whole lot sooner than I did. I know this understanding that I may be disappointed by what I see in them. Still, I would have closure, and that is valuable in itself.
My adoption is a semi-open adoption, although it often feels like a closed one. I know some details about my birth-parents, such as a medical history and that my birth-mother is now married (not to my birth-father) and has three children. That’s it. That’s all I know. To me, that’s not enough.
Since I have turned eighteen, I have started to make steps towards finding my birth parents. I’m not looking for a fairy-tale ending. I know that fairy tale endings are rare in life, but I would like to know. I just want some closure so I can stop wondering, even if the answers may not be what I was looking for.
Open adoption would have solved all these problems. Yet, these problems are nowhere near the possible problems I could have faced if I was not adopted. I am so thankful for my family and for everything they have done for me. I would not be where I am today without them and I am looking forward to seeing how much more I can accomplish and grow all because they gave me the opportunities needed to succeed.
I am quite passionate about adoption. I wouldn’t be writing this if I wasn’t. If I get married and decide to have children, my first step is to adopt or to foster a child. There are children out there that need a safe home with caring parents or guardians. If you’re considering adoption, know that you could be the best place for a child to be and take the leap to provide your love and care that child needs. If you’re considering giving your child up for adoption, think about the child first and foremost. Do what is best for the child, because that is the most important thing.

Written By – Anna M.




Tuesday, July 17, 2018

Why I Check the Box to Donate to Pro Bono

Editor's Note: This letter appeared in the July 2018 edition of the New Hampshire Bar News, and was also published in the NH Bar's E-Bulletin. 


This past year I have begun a new adventure as something I never thought I would be: a father. As I listen to my now one-year old daughter stumble through words like “What’s that!?” and “Mama” and “Dada”, I think a lot about her future, and my own. I feel responsible for who she becomes, and worry constantly about her. I certainly worry too much, but I care a lot about the world she grows up in, and the lessons I teach her as she grows. It’s important to me that my child is someone who helps others. I was raised that way by my parents, and I pray I can do the same for her. As one of my favorite quotes from Abraham Lincoln (and one I have used often), “When I do good, I feel good, and when I do bad, I feel bad. That is my religion”. I hope to impart that on her as she becomes her own independent person.

Pro Bono is something I am passionate about, and always something I will advocate for. As a program, we do really awesome things for so many people. We help domestic violence victims get protection, we help tenants defend themselves against landlords and their expensive attorneys, we help people with old criminal convictions get new beginnings, and help countless others. This is arguably the most important work I am doing, and something I think about how I can be better at.

When I check the box, I think about all the people we are able to help, the incredible attorneys sacrificing their time to help them, and the communities that benefit from this program.  Checking the box and donating to pro bono helps bring a positive message to our fellow citizens, and the people we represent. This message is important to me, especially as a new dad fretting over the world his one year old daughter is going to grow up in. I think about the help our donations will provide to a program that helps provide access to justice to the most vulnerable members of our society.

Check the box. It will feel good, and it will go to a great cause. Please consider it when you renew your dues this year.


Rory J. Parnell
Parnell, Michels & McKay, PLLC

Wednesday, June 20, 2018

After Co-Parenting Ends


            This blog has frequently discussed the value of good co-parenting. A common problem many couples face following a divorce is how to parent together in different homes. In general, most cases involving parenting time or decisions invokes New Hampshire’s “best interest of the child” legal standard. This particular legal phrase is frequently found in RSA 461-A, the main statute covering the legal rights and responsibilities for parents. While this legal standard may seem “squishy” to some, the flexibility it provides the field of Family Law helps to ensure that children are properly protected when parents disagree about what is best for their children.

Frequently, co-parents attempt to take their spouse to Court for contempt for failure to follow the parenting plan. A New Hampshire parenting plan has several sections of form language where it encourages the co-parents to put aside their anger with one another to focus on their children. One such section reads, “[e]ach parent shall promote a healthy, beneficial relationship between the child(ren) and the other parent and shall not demean or speak out negatively in any manner that would damage the relationship between either parent and the child(ren).” The inclusion of such language is to help enforce the idea that even if the parents do not get along in all other aspects, they still have a child to raise together. 

Unfortunately, there are times where one parent will use the child as tool in an attempt to worry, anger, and/or alienate the other parent. From a practical standpoint, there is not much a Court can do to make a toxic co-parent refrain from being toxic unless the other parent can prove how such toxic behavior is affecting the child’s best interest. Proving such toxicity can be quite difficult, even if the non-toxic co-parent takes copious notes, writes emails, texts, and generally tries to keep a record of the other co-parent’s bad behavior. In a series of photos, the Facebook page, “Solutions Counseling,” posted a letter from a son to a toxic co-parent, after his age of emancipation from a parenting plan.

Now the letter is not signed, posted anonymously, and potentially typed using a cell phone application, but even the most skeptical eye should consider the letter’s message.  At some point, children grow-up. However, well before that point, children will understand the nature of their parents’ actions long after their parents have split-up. Good co-parenting should never be about “winning” an argument, or who has “more time” with the child. Good co-parenting is fostering a sense of unity so the child does not feel used, scared to talk about issues/problems they are having, or generally unwelcome in home. Good co-parenting assures children feel loved and welcomed in two homes, knowing both parents are there to support them, and not to simply “get back” or “hurt” the other parent.     

The first step to good co-parenting is to make sure there is a well-developed parenting plan that addresses the needs of the children during both parents’ parenting time. The parties do best when they put their self-interest aside and listen to their co-parent’s goals when raising their children. At Parnell, Michels & McKay, our attorneys always counsel our clients to develop a parenting plan that provides for your children’s best interests. We listen to your input and provide advice at each step of the legal process. Our mission to advise people through the difficulties that arise when drafting a parenting plan, modifying an existing one, or simply dealing with a difficult co-parent. If you are interested in learning more about parenting plans, divorce, child support, or any other legal concerns in your life, please contact us to learn more. We want to help you be in the best position to have a positive co-parenting experience.   

Tuesday, May 29, 2018

The NH Constitution versus Immigration Federal Law: A case study in Woodstock, NH


            As some of you may remember, a border patrol checkpoint in Woodstock, NH resulted in multiple drug arrests of various individuals with small amounts of marijuana. Some of the Defendants challenged these arrests on constitutional law grounds. In a lengthy order, Judge Thomas Rappa of the New Hampshire Circuit Court has politely, but strongly reaffirmed, that where New Hampshire provides greater protections then do federal procedures, the New Hampshire procedures must be adhered to in any search and if they are not, there will be consequences to the prosecution.

            At issue were a series of arrests at a motor vehicle border patrol stop in the Town of Woodstock on Route 93 in August of 2017. United States Customs and Border Patrol agents were working the checkpoint with assistance from local police departments. For several years, the Border Patrol has set up a motor vehicle stop approximately 90 miles from the Canadian border in the Town of Woodstock on Route 93. The primary goal, per border patrol, was to identify immigration violators as part of the federal government’s focus on immigration crackdowns. This time around, in August of 2017, the stop included drug sniffing dogs. If a dog alerted on a vehicle, that vehicle was pulled aside and the local police officers from Woodstock of New Hampshire precincts would conduct a search of the vehicle. Ostensibly, the border patrol had the dogs present to stop drug smuggling. However, the dogs would alert on vehicles with any drugs, including those vehicles with nominal amounts of marijuana for personal use only. In those nominal cases, border patrol had no interest in prosecuting the defendants. However as indicated, assisting border patrol were members of the local police department. While the border patrol was not interested in vehicles containing small amount of drugs, the local authorities were interested and arrested several individuals during the course of the stops.  It was this group of individuals that challenged the arrests claiming that the searches were unconstitutional under New Hampshire law. New Hampshire’s protections under the law for these individuals are greater than those provided under federal law when it comes to searches involving drug sniffing dogs.

            The defendants moved to suppress the evidence of drugs found as a result of these stops. The state argued that since the stops themselves and searches were permissible under federal law and were conducted by federal actors, the local authorities could use the information provided by the federal agents and make the arrests. The defense argued where the prosecutions were in state court the greater protection provided by the law of New Hampshire with regard to searches applied. Since the searches conducted by the federal actors did not comply with state requirements, and because the prosecutions were in NH state court, the court ordered the suppression of all evidence secured as a result of those searches. Ultimately, Judge Rappa found the searches violated New Hampshire constitutional law. It is not clear at this point whether the state will appeal Judge Rappa’s decision.

            This is a situation where New Hampshire’s constitutional rules apply, and the greater constitutional protections afforded by our state were applied. While the immigration issue is a very separate matter, this order demonstrated that if the State wishes to get involved in these stops, they must still follow the rules of the state they are in.

            This unique situation is one of many playing out around the country, as we look at various way to change and apply our immigration and constitutional law. At Parnell, Michels & McKay, we are always looking at developments in the law. If you are concerned about how the law affects you, contact us today.

Tuesday, May 22, 2018

CIVIC DUTY: TESTIFYING IN FRONT OF THE NEW HAMPSHIRE STATE CONGRESS


                Recently, there has been a significant debate in the New Hampshire house legislature about a rather mundane bill to most people. For the past year or so, Attorney Rory Parnell has attended multiple hearings and spoken to many legislators in New Hampshire in support of a direct deposit bill in workers’ compensation cases.
                The bill itself is very straight forward. If an injured employee is out for six weeks or more, the employee can elect to receive their indemnity benefits (a weekly wage check) via direct deposit. The current rule allows for insurers to mail the wage checks each week the worker is out due to a work injury. Unfortunately, mail is unreliable due to issues with mail carriers, holidays, and delays by the workers’ compensation insurer delaying payments. For those that are reliant on the check each week to pay bills, even a day or two delay can cause havoc on their finances. Now, with the bill set to be signed into law by Governor Sununu, such delays should be a thing of the past.
                While this is an important victory for workers’ compensation claimants, it took many meetings and hours of work by many New Hampshire attorneys and their clients to get this passed. When the original bill was proposed, Marissa Chase, the legislative lobbyist for the New Hampshire Association for Justice (NHAJ) put in countless hours to lobby senators and house members alike in support of this bill. This bill will save insurers time and money, and provide the reliability our injured clients need during the stressful time they are unable to work.
                However, there are many hearings, meetings and committee meetings for such bills. It is important for the legislature to know that the work they are doing will help their constituents. And, while we met resistance from the insurance lobbyists, ultimately through testimony and hard work the bill was able to be passed by the House and Senate.
                This civic duty of engagement is something many more people should think about exercising. The State of New Hampshire publishes pending bills, and invites the public to speak in support of or against such proposals. However, many people are either unaware, or unable to attend such meetings or hearings, as it is often inconvenient and difficult to attend. Attorney Parnell and the rest of NHAJ are proud of all the work the plaintiff’s attorneys and their clients put in to getting this bill passed.
                At Parnell, Michels & McKay, we try to stay involved in both our community, and the formation of the laws that regulate us when we can get an opportunity to do so. If you are interested in the ways our firm can help you when you face problems under the law, or with a particular pending bill, contact us and find out how we can help you.