Personal Injury - Documenting the Scene

    We have talked about the general overview of personal injury cases and some important things to remember when you are involved in a personal injury case. Another question we get a lot when we meet initially with clients is whether the client should have taken pictures or tried to do more to document the scene of the accident. In auto accident cases, most police departments will take pictures of the scene of the accident and the damage to any vehicles in the accident. So, for the most part, some evidence will be saved by the investigating officers. However, there are many ways with which our clients run into unfortunate accidents leading the injury. These range from slip and falls, dog bites, trip and falls, and many other accidents. There are not always police to help document the scene, and a few pictures can go a long way towards getting a more efficient and prompt settlement.

     If you are involved in one of these unfortunate injuries, the first thing to address is medical treatment. This cannot be stressed enough. The most important thing is always to get help and get the medical treatment you need as soon as you can get it. However, in today's era everyone seems to have a cell phone or a small camera with them at just about all times. One of the most helpful things to do if it is possible is to take out the camera and document the scene. We have had many cases where a client's simple idea of taking a couple of pictures with their cell phone has made a significant difference in the outcome of their case. These range from taking pictures of black ice formed in the parking lot, to pictures of a set of stairs that was in violation of state building codes, and even to an auto accident where the investigating officer did not have a camera due to their town's cost constraints.

     Regardless of whether a client has the wherewithal to document the scene where they were injured, it is always a priority for our office. We take great efforts to learn the facts of the accident and how to diagram what happened for a potential jury. This ability to show the individuals involved with deciding your case exactly what happened helps remove doubt from the insurance company and/or opposing counsel, and leads to more prompt and efficient resolutions. This is just one of the many ways our office has honed and refined our injury practice over the many years we have been handling injury cases. This allows for easier resolutions and less stress for our clients.

     If you were injured, please contact our office today so we can help you get the solution you need to more forward.

Injury Claims – The Road Map to Getting Back to Normal

The key to understanding injury claims is that claims handling is driven by insurance requirements. The vast majority of injury claims are resolved by settlement.  The parties to the settlement discussions are most commonly the injured party, his/her attorney and an insurance company. It is necessary to know how insurance companies process claims in order to achieve the best possible result. The most important thing to remember is that insurance companies rely heavily on objective information to form a valuation of each claim. This comes in the form of medical and billing records, accident reports, pictures, lost wages documentation, and other related records. The more complete your documentation the better your chance of a satisfactory result. Gathering documentation should be your first priority when you suffer from an unfortunate injury.

Here at Parnell & McKay, we make information gathering a top priority in each injury claim we handle. Our attorneys have the knowledge and know how to be able to track down every piece of important documentation on your claim. We understand what insurance companies are looking for, and we exert pressure on insurance companies based on that knowledge in order to obtain the highest settlement for our clients. We have secured millions of dollars in compensation for our clients using this time tested practice, and look forward to helping future injured parties get back on their feet.

If you were injured, read more about our personal injury practice here. As always in injury cases, consultations are free. Contact us today.

Difficulties with Personal Injury Cases: How the Insurance Defense Industry is Making Recovery Harder for Injured Victims

            A large part of our personal injury practice at Parnell & McKay deals with injuries people sustain in motor vehicle accidents. Bringing those claims to resolution now, more than ever, is a complicated and difficult task. Dr. Arthur Croft of the Spine Research Institute of San Diego (SRISD) is familiar with this difficulty, as he has had many patients of his become overwhelmed by the personal injury claims and litigation process.

            In his article, titled “Study Confirms Flaws in Standard Defense Strategy for MVC Injury”, he touches on how automobile insurers are doing everything they can to avoid paying personal injury claims. You can read Dr. Croft’s article here. Dr. Croft calls the position All-State Insurance, and others, take as the “three D’s – delay, deny and defend”. As a result, bringing claims has become more difficult because, as he says, “they traded good hands for boxing gloves” in their claims handling. Unfortunately, this strategy has become a successful financial choice for auto insurers because a lot of Plaintiffs have given up on their claims due to that difficulty.

            Dr. Croft also addresses how jurors are being misled by the auto insurance industry’s practice, relying on their biases and naiveté to achieve results. The first defense he addresses is when they argue that low velocity accidents (under 25mph) should not cause injury. However, Dr. Croft relies on a few studies that demonstrate objectively that this argument has no basis in science or fact. Research concluded that the velocity of the accident does not control the injuries suffered. While this seems like common sense to you and me, it is easy for a jury of our peers to get bogged down in the ‘pseudo-science’ of the auto insurer’s argument. Other factors like position of the head, the angle of the accident, the type of car involved, the greater susceptibility to injury of an older person, etc., all have major influences on the nature of the injury each person suffers. Dr. Croft’s article provides a great summary of how the nature of insurance defense has changed over the years, and how best to combat such aggressive tactics.

            At Parnell & McKay we have over 30 years of combined experience handling personal injury cases of all kinds. Dr. Croft’s article underlines why personal injury lawyers have become so integral to reaching a fair result for injured persons. In fact, he talks about how the difficult nature of injury cases has resulted in fewer lawyers handling personal injury files. At Parnell & McKay we are undeterred by these difficulties, and have adapted our practice to address these tactics and discredit them as thoroughly as possible.

            If you are injured and need help, please call the Law Offices of Parnell & McKay today. You can contact us here. 

The Dangers of Allowing the Legislature to Run the NH Courts: Why You Need to Vote “NO” on Question 2

                On November 2^nd this year, New Hampshire voters will be asked to vote on whether to give the power of administration of the Courts to the legislature. Here is the language from the proposed statute: “The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.”

            The New Hampshire Bar Association has come out in complete opposition to the rule, as noted on their website here. There is a significant danger of giving the power of administration over to the Courts to a legislature that does not have the wherewithal nor the knowledge to administer it. Stephen Merrill and Honorable Joseph P. Nadeau wrote an article that demonstrates the risks this rule poses to the New Hampshire Court system and the citizens that have to navigate that system every day. They write: “What makes this legislative proposal troublesome and extreme is it violates a fundamental principle of constitutional democracy; the three branches of government ought to be separate and independent. As Justice Sandra Day O’Connor noted, "The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation." We agree.”

They go on to address what the legislature has said they truly want to do, which is to control the Courts. They write: “Some legislators supporting the amendment say openly that they want to "control" the courts. What does that mean? It means a legislative takeover of the judiciary. We are compelled to speak out and say, "No”.” Stephen Merrill was Governor of New Hampshire from 1993 to 1997, and is a former New Hampshire Attorney General. Honorable Joseph Nadeau is a retired justice of the New Hampshire Supreme Court. These are people that understand the issues facing our Court system in New Hampshire as they have spent their lives actively participating in it.

            Over the past few years, our clients here at Parnell & McKay continue to be frustrated by the time they have to wait to get their case heard, and the difficulty in getting an efficient resolution. Allowing the legislature to wrest control of the Court system in New Hampshire away from the courts themselves is an extremely risky proposition, as former Chief Justice of the New Hampshire Supreme Court, and current Dean of the UNH Law School, states in this article opposing the statute. In fact, former Chief Justice Broderick calls it a “very dangerous thing”.

            After navigating the Court systems of New Hampshire for over thirty years, we at Parnell & McKay understand the significant danger to the citizens of New Hampshire in allowing the legislature to control our Courts. We come out in opposition of Question 2, and hope the other voters of New Hampshire vote “No” on Question 2 as well. 

What is Income for Child Support? Recent N.H. decision uses broad definition

                We are often asked as attorneys what figure the Court uses as income for the purposes of calculating child support. RSA 458-C:3 defines “Gross Income” as “All income, from any source, whether earned or unearned…” and then goes on to include specific sources of income like wages, salary lottery or gambling winnings, etc. This is an easy concept for most people to understand. You work, you receive salary or wages, and those are calculated for child support purposes. However, what if you received hundreds of thousands of dollars from a life insurance policy? Well, the New Hampshire Supreme Court recently answered that question with a “yes”.

                The case, In the Matter of Larocque and Larocque, looked at whether life insurance proceeds the father received from the death of his second wife should be calculated as income for child support purposes. The father argued as a matter of law life insurance proceeds are not included as income, as there is no specific reference including those proceeds in the statute referenced above. The Supreme Court disagreed.

                First, the Court stated that while no specific reference including life insurance proceeds is in the statute, it is also worthy to note that there is no specific exclusion of life insurance proceeds. Second, the Court focused on how income for child support purposes can be “earned” or “unearned”. Third, they focused on how the life insurance payout was solely in the form of money, and how it was similar to the receipt of trust or annuity income which was specifically included in the child support statute. The Court reasoned that the definition of income for child support is broad, and found that the life insurance proceeds by law are to be included in child support calculations. In this case, the life insurance proceeds totaled $500,000.00 and were paid directly to the father. A child support award of around $100,000.00 was ordered to be paid to the mother.

                How can potential litigants avoid having this issue arrive in the common case of second marriages? Well, in the first instance, the title of the beneficiary of the life insurance is very important. It is common for parties to have life insurance policies that name the mother or father of the child as a “beneficiary in trust for the minor child or children”, which means the parents will receive the money on behalf of their children and that the funds can be used for that purpose. That option may not be palatable to some, and there are other options in order to properly title the potential insurance proceeds so the other party does not receive a windfall in child support.

                Here at Parnell & McKay, we have experience both in planning for the future and in family law. If you find yourself with concerns about how to handle your family case or potential estate, contact us today. 

Massachusetts vs. New Hampshire: Differences in Personal Injury Claims

                Massachusetts is a mandatory insurance state, and as a result, all residents of Massachusetts are required by law to carry automobile insurance. New Hampshire, on the other hand, does not require everyone to carry automobile insurance. Many people ask us what this means for them, and their potential injury claim.

                First, Massachusetts policies have what is called “personal injury protection” (a/k/a “PIP”) coverage. This is a type of insurance that pays for medical bills incurred as a result of an auto accident. So, if you are injured and have a Massachusetts policy, then the personal injury protection will be the first to pay out for medical bills. Under Massachusetts rules, the first $2,000.00 of all related medical bills to the accident are paid by the auto insurance coverage through PIP. Once the $2,000.00 is reached, there is an important event that happens, and that is the case reaches the “tort threshold”. Essentially, if you have incurred over $2,000 in medical bills, or have suffered scarring or permanent disability, then you are then allowed to proceed with a personal injury action. If you do not meet this tort threshold, you are not allowed to proceed under Massachusetts law, and are confined to be reimbursed by the PIP coverage. Once the $2,000 in PIP coverage is reached, then it gets really confusing. At that time, the primary payer on related medical bills to the accident switches to the health insurance company. They will pay the first payment, and then PIP coverage will pay for any co-pays or uncovered expenses that health insurance does not pay for. This will cover the next $6,000 of the total of $8,000 covered by PIP. However, PIP does not just cover medical bills, it also covers lost wages. So, it is very common for PIP to pay wages the injured person missed as a result of their inability to physically work. Thus, PIP coverage provides almost immediate remuneration to injured persons without having to reach a global settlement on your case.

                In New Hampshire, the insurance policies are markedly different. First, you will not typically find any PIP coverage that you would in Massachusetts. Instead, most New Hampshire policies have medical payment coverage that can be as little as $1,000, and as much as $10,000. This is commonly referred to as “med-pay”. It is very important that your attorney of choice understands med-pay coverage and how that affects your claim. Medical payment coverage is non-subrogable, which is a complex way of saying that any bill paid by the med-pay policy will not be required to be reimbursed through any settlement. This is different from your health insurance. If your health insurance carrier pays for medical bills from an accident, and then you settle your claim from the accident, then the health insurance carrier has a right to subrogate (i.e. be reimbursed in part) a portion of the payments they have made to those medical bills. Thus, it is very important that any attorney understands that med-pay coverage must be exhausted first in order to save clients a potentially substantial sum of money. Unfortunately, in New Hampshire, this is all the payments you will receive other than reimbursement for property damage. Insurance companies will generally not pay lost wages or non-med-pay covered medical bills without reaching a global settlement on the file. Thus, as you can see, there are pros and cons to both systems. The Massachusetts system is complex and involves multiple insurance companies and departments, while the New Hampshire system is broader and involves fewer insurance issues. Both have their benefits, and both have their drawbacks.

                Here at Parnell & McKay, we pride ourselves on our knowledge of insurance law, and how to utilize that knowledge to maximize the benefits to our clients in any injury case. If you are injured, please contact us today to schedule an appointment. Consultations are free.

                        This blog is not legal advice, and is just a general summary of law. You are not to rely on any statements in this blog in relation to your pending case or cases. This blog does not establish an attorney-client relationship, and shall not be construed to do so. If you have specific legal questions, please contact us as your individual case requires individual analysis and review. 

The Importance of Language in the Law: Paying College Expenses

In a recent decision by the New Hampshire Supreme Court, two ex-spouses argued about whether they had to pay for college expenses. The case, titled In the Matter of Christian Poulin and Rose Marie Poulin Wall, took a hard look at the specific language used in the parties’ Divorce Decree. The language stated, in pertinent part, “The parties agree to contribute to their children’s college education to the extent each party is financially able.  The actual contributions shall be determined when each child is near college age.” The mother asked the father to pay 75%, the father refused and attempted to pay a lower number, and this case ensued.

                The father argued that the agreement lacked specificity, and cited another New Hampshire Supreme Court case, In the Matter of Scott & Pierce. The father argued that the language of the Decree only required them to meet and discuss the case, and consistent with Scott, the case should be dismissed.

                The Supreme Court disagreed. The language in the Scott decree only stated the parties would sit down at a future date to discuss paying for college. This was different from the language in this case, which stated that the parties both “agreed to contribute to their children’s college education”. This was a specific order to contribute, and that any order dictating what amount that contribution to college would be if the parties could not agree was merely to modify that initial order. The Court sent the case back down to the Family Court to determine what amount each party was financially able to contribute to their daughter’s college expenses.

                This is an important example of the importance of specific language in any request for a court order or stipulation. Language is integral to law, as it should provide parties with a clear indication of their rights and obligations moving forward.

                If you need assistance understanding the “language of law’, please contact us today. 

U.S. Supreme Court Strikes Down Major Provisions of Arizona Immigration Law

            Today in a landmark decision, the United States Supreme Court struck down three of the four major portions of Arizona’s immigration law. Arizona passed legislation that, among other things, allowed police to stop people that they had a suspicion could be illegal immigrants, check immigration papers on stops, and demand that all immigrants carry their papers with them at all times.

            In a 5-3 decision, the Supreme Court struck down three major pieces of the troubled legislation. First, the Court struck down the authorization the legislation gave local authorities to arrest alleged immigrants where “probable cause” exists that they are in the country illegally. This was a major piece of the legislation that garnered opposition at it seemed to give local authorities the power to stop and arrest any individuals that might be in the country illegally based on sight alone. Thus, opponents argued, they could stop any person that was of Latino heritage and claim justification by the law. Opponents argued this was

profiling in documents filed with the Court.

            The Court also struck down a provision that made it a state crime for immigrants’ failure to carry registration papers with them at all time.  The Court did not stop there, striking down the provision that forbid all illegal immigrants from soliciting or performing work in this country. The Court focused these decisions on how Arizona was preempted by federal law when it comes to immigration. Essentially, preemption requires that the federal government has made a law on a specific issue, like immigration, and that the State, in this case Arizona, makes a law on that same specific issue that directly conflicts with the federal law. Congress’s expansive registration process for immigrants was specifically cited, as was the larger scheme of immigration handled by our federal government.

            All was not completely lost for Arizona, as the provision that was upheld allows law enforcement officers to check the status of a suspect’s immigration if they have already been arrested or detained for another crime and ‘reasonable suspicion’ exists as to that person’s immigration status. Arizona Governor Jan Brewer called the upholding of this provision a "victory for Arizona" in comments made shortly after the decision was publicized. 

            The decision will have far reaching consequences at both the State and Federal level as other states, like Georgia, Alabama, Utah and Indiana, have all enacted similar provisions in their laws.

            In related news, in the next major case heard this term by the Supreme Court, the health care law decision is expected this Thursday. Legal insiders seem split on where the decision will go, but a small majority expects the individual mandate to be stricken from the law. Check the Parnell & McKay blog later this week for an update. 

The Health Care Appeal: What You Need to Know to Understand the Health Care Debate

            A decision is expected this month on whether the Affordable Care Act will be struck down by the United States Supreme Court. Legal scholars suspect that the individual mandate provision faces the most risk of being struck from the law, while experts expect the remainder of the law to stand. It is not clear what the Supreme Court will decide, but a lot of people have been confused on what the Court will look at when deciding whether to uphold the law.

            In order to understand the Government’s legal justification for the law, one needs to understand the Commerce Clause in our Constitution. This clause has been used to expand what Congress can and can’t regulate through its laws. Essentially, the Commerce Clause permits Congress to regulate commerce between states. Thus, if the commercial activity involves “interstate commerce” then Congress can regulate it by statute.

            The seminal case in this matter was Wickard v. Filburn. In Wickard, Congress had passed a law that regulated how much wheat a farmer could grow on his property. The law was passed in order to drive up wheat prices in a down economy. Mr. Filburn was a farmer who grew wheat for his own personal consumption. The government ordered him to destroy his crops and pay a fine. His appeal followed. In upholding the law, the Supreme Court expanded the commerce clause power to include anything that has an effect on interstate commerce. This expansive language has been relied on since that time in order to uphold a large amount of congressional statutes. The Wickard decision has garnered the ire of many strict constitutional scholars that felt the expansion on the commerce clause power was not what the Framers of the Constitution intended.

            How does this affect the Health Care debate? Well, the justification the government has relied on in supporting the law is the commerce clause and its expansive power. While experts do not expect the law to be struck down, many expect the individual mandate portion to be eliminated. The individual mandate forces citizens to purchase health insurance, and has a system of penalties in place if they do not. The government argues that health care is interstate commerce and falls squarely within their power. The opponents argue that forcing a citizen to purchase health insurance infringes on their freedoms, and is an unjustified expansion of the commerce clause power.

            Leaving the politics of the health care debate aside for a minute, the decision in this case will be a seminal moment in the commerce clause debate, and could have far reaching consequences on future cases brought under the clause. If you would like to learn more about the health care decision, and other decisions in front of the Supreme Court this session, the SCOTUSblog  has a “plain English” post explaining in layman’s terms the issues of each case.

            If you need help navigating the confusing legal world in New Hampshire or Massachusetts, please also feel free to contact us today. 

Divorce Hotels: The Netherlands Unique Approach to Dissolving a Marriage

            It’s a very difficult situation when two people are divorcing. The process can take a lot of time and money, and only lead to more frustration. It is not an easy process, but is one that the Netherlands is taking a new approach to resolving. They have introduced “Divorce Hotels”. The divorcing couple checks in on Friday, and leaves on Sunday with a divorce agreement.

            How do they do it? Well, they have a team of mediators, psychologists, and lawyers that get involved to help facilitate the final divorce agreement. The cost can range from $2,500 to $10,000 depending on the complexity of the assets and whether there is a fight over custody of the children. The parties then sit down and try to resolve the divorce as amicably as possible, all while spending the entire weekend in a hotel.

            The process isn’t for everybody, as noted in this article by ABCnews. “Not all divorces are so amicable. Halfens said the hotel only works if both parties are keen to make a clean break. “We can’t split up everybody,” he said, adding that couples who are “aggressive” or “childish” usually need a traditional and somewhat lengthy divorce. “First, we invite them to our head office for a conversation; we ask them about the situation. If it’s possible, we book them into the hotel. If not, we help them with a traditional divorce.”

This method is really interesting, as it is very similar to the Collaborative Divorce process our firm currently provides. Collaborative Divorce, just like in the Divorce Hotel, requires parties that are ready to split amicably and want to avoid a prolonged and expensive litigation.

As is noted in the article, the program is looking to branch out to the United States. In fact, Demi Moore and Ashton Kutcher were the first ones invited to partake in the program. While Ashton and Demi denied the request, it does look like it will be coming to the States so keep an eye out for a strange new way of getting divorced.

Federal Appeals Court Rules Defense of Marriage Act (DOMA) is Unconstitutional

            The Defense of Marriage Act, also known as “DOMA”, is a federal statute that was passed in 1996. The act states that when it comes to federal laws and regulations, marriage is defined as between a man and a woman only. The effect of this law was to limit the ability of same sex couples from receiving social security survivor benefits, and prevent them from being able to file joint taxes together. The law also stated that other states do not have to recognize same sex marriages in other states if their state did not recognize them.

            The ruling focused on these denials of benefits to same sex partners, and involved a type of legal analysis in constitutional cases called the “rational basis” test. This is the lowest bar for a federal statute to hurdle, but even with the low bar the Defense of Marriage Act was still struck down by a unanimous three panel appeals Court. The rational basis test, as discussed previously in this blog, involves the burden falling on the government to prove that the governmental action is rationally related to a legitimate government interest. This is same bar Proposition 8 in California failed on hurdle earlier in the year.

            The recent decision finding DOMA unconstitutional sets the stage for the United States Supreme Court to likely hear a same sex marriage case around this time next year. The decision will have far reaching implications, and will affect the field of family law for years to come.

            If you have questions about family law, or how the recent decision may affect you, please contact us today. 

NEW HAMPSHIRE HOUSE OF REPRESENTATIVES AND COURTS BATTLE OVER NEW CENTRALIZED COURT SYSTEM

            As reported in the Concord Monitor on May 13th, the New Hampshire Legislature has proposed new legislation that will undue the centralized management that has been put in place in the New Hampshire Court systems over the past year. The proposal will not undue the newly implemented circuit court system, but it will eliminate the centralized management that is running the administrative side of New Hampshire’s courts presently.

House Speaker O’Brien has indicated that they have received complaints from Judge’s about their inability manage courthouse staff under the new system. He has also indicated that police prosecutors have complained about the Judge’s in place are no longer familiar with their communities. These concerns resulted in the proposal being submitted on Friday to undue the centralized management system.

            Judge Edwin Kelly fired back on Monday, stating that the new system has saved approximately $2.3 million dollars in the last ten months. Judge Kelly wrote, “We know change is not easy and that some people will be unhappy, but that is certainly no reason to suddenly abandon innovation, ignore the demonstrated success of the new system and turn back the clock, which is what this legislation would do.” Judge Kelly referenced how, “In 2010 the New Hampshire Supreme Court formed an Innovation Commission consisting of business leaders, legislators, members of the public, court staff and others. The charge was challenging, but clear: re-create the administrative model of the judicial branch using 21st-century business practices and take advantage of technology where possible to dramatically cut costs while also assuring full access to justice for all citizens.” Judge Kelly believes that the newly formed system meets those goals, but the battle still rages.

            How do you feel about the proposal to change our Court system again? Let your legislatures know whether you support or oppose the legislation, as the best laws are the ones with all of the public’s input. 

Product Liability: Understanding the Three General Types of Defects

            Generally, product liability has three main causes of action. They are a design defect, a manufacturing defect, and a failure to warn (or marketing defect). Each of these defects provide a cause of action to a consumer who is injured by a company’s product. Understanding each of them is important in order to assess whether you or a friend has a claim.

            A design defect is something that is inherently dangerous about the design of the product that is causing injuries. Thus, no matter what is being manufactured, if the product has a design defect, then the product will be dangerous regardless of how it is used. A good example is lead paint. No matter how it is used or manufactured, it will also come with a serious and dangerous risk.

            A manufacturing defect is one that occurs during the manufacturing stage, or, better put, it is a defect that is caused by the manufacturing process. This involves poor materials or shoddy workmanship. Thus, a product may be designed very well, but when manufactured by a particular entity, it is manufactured lazily and it becomes a dangerous risk to others. An example of this could be a phone that is prone to electrocuting its owners due to an issue with the way the battery was manufactured.

            A failure to warn, or marketing defect, is when a product is dangerous no matter how you manufacture or design it, and thus the entity making it is responsible for warning consumers of the hazards using the product could have. The warning here is key. If it properly informs the consumer of the risks associated with a product (ex: don’t drop a hair dryer into water), then the maker of the product is generally protected. However, this brings to mind the old McDonald’s coffee case, where it was a failure to warn that the coffee was scalding hot that allowed the burned woman to recover. This is why the warnings on hot coffee have become so prevalent. While the commoner understands coffee can be hot, the Court in that case found there must be a warning as to how hot, as it is not expected that coffee could cause the damage that it did in that case (which were third degree burns).

            If you find yourself or someone you know injured by a product and you need help navigating the law, please contact the experienced attorneys at Parnell & McKay today. As always in injury cases, our consultation is free. 

Modifying Your Parenting Plan in New Hampshire: Case law v. Statutes

            In 2009, a decision was reached by the New Hampshire Supreme Court In the Matter of Muchmore and Jaycox. The decision was based on the modification of parenting plan statute, titled RSA 461-A:11. At the time Muchmore was decided, the statute provided that only a substantial change in circumstances could justify a change to the parenting plan. In Muchmore, the father petitioned for a change in the parenting plan because it was in the best interests, he posited, of the minor child. The lower Court decided that a modification was appropriate, and granted his request. Our New Hampshire Supreme Court reversed, citing a strict application of the statute. The result was frustration by legal minds around New Hampshire, as the bar to hurdle for a modification was set too high.

            In the decision, the Court insinuates that they have no other choice but to apply the statute as written. Thus, the Court seemed to be saying, that the New Hampshire legislature must reexamine the statute. That is exactly what the legislature did.

            Over the past few months, the new version of RSA 461-A:11 has been in place. The changes made allows for minimal changes now, which was not present before. For instance, if the transportation location isn’t working for one party, the minimal change provision allows for a modification of this provision. This is important, as there are often subtle small changes that need to be made that helps all parties involved. The Court also included some language in the statutes that allows the Court to consider the best interests of the child in the context of the statute. The result has been a much smoother process, and it demonstrates that sometimes our legislature and Court system gets it right.

            If you find yourself in need of a modification, contact the experienced lawyers at Parnell & McKay. 

Walking in the Street: Do I need to be in a crosswalk to be legally protected?

          Over the years, our firm has handled quite a few cases where a pedestrian was struck by a vehicle. Yet, each time, it seems the client is not sure about what the laws are as it relates to pedestrians in the roadway.

            The first thing to examine is New Hampshire’s Pedestrian Right of Way statute, titled RSA 265:35. You can access a copy of the rule here. As paragraph I of the statute states, cars are required to yield to a pedestrian who is properly in the crosswalk. Thus, in a typical situation where a car hits a pedestrian in a crosswalk, liability is generally clear. However, there are a few other factors under the statute that merit consideration. First, the pedestrian must not have suddenly darted in front of the vehicle causing it to hit them. This is a codification of the old adage “look both ways before you cross the street”. As long as you follow your parents’ old advice, you should be protected under the statute.

            What is not clear to most clients is that a pedestrian, under the statute, must yield to cars in the road in the absence of a crosswalk. A lot of folks believe the reverse is true, in that a pedestrian always has the right of way. This is simply not true. The rule governing crossing the road without the use of a cross walk is RSA 265:36, and you can access it here. As you can see, the pedestrian is required to yield to cars already in the roadway. The justification is easy to see. It’s a substantial risk to put the onus on drivers of cars to yield to all pedestrians anywhere, while in the same breath it’s easier for a pedestrian to see a car and yield to it.

            As always, if you are approaching a busy intersection as a pedestrian, please use caution. No one wants to be hit by a car in what can amount to a life threatening experience. Further, if you are operating a car around a heavily populated area, you must be aware of any and all crosswalks around you, and caution in approaching them must be exercised.

            If you have been injured, our attorneys have handled personal injury cases for over thirty years. We are one of the most trusted firms around, and will help you get back what you deserve. Contact us today. 

What is Negligence and who is a Reasonable Person?

            A large number of personal injury claims are based, at least in part, on a theory of negligence. Negligent conduct is conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

            To use an old logical saw, that ultimately begs the question of who a reasonably prudent person is. To some, the definition of that person comes as a surprise. The reasonably prudent person can sometimes be generalized as “Debbie Do-Gooder”. The reasonably prudent person stops completely at lights and stop signs. They signal a full 100 feet before making a turn. They always look both ways before turning, and never speed. This can be an intimidating prospect for some, as most people don’t operate that conservatively in their every day lives.

            This definition doesn’t stop with people driving cars either. A reasonable business owner salts the entrance to his business after every freeze. They shovel all snow from their pathways, and warn patrons of any dangers that could potentially affect them. They post warning signs, double and triple check food they make, and make sure they don’t hire anyone that could harm another.

            It’s a difficult idea to envision, and one our clients are always concerned with. If you have questions about liability at your business, feel free to contact our office today. If you’ve been injured, and need help, we provide free consultations in all injury cases. Contact us today. 

Divorce in New Hampshire: Part 1 - Important Documents

            As a local Judge likes to say during First Appearances in a divorce matter, “You are all likely going through the worst time period of your lives. We’re here to try to figure out how you move on, and what you need to do to make that process easier.” It’s true, divorce means a marriage is ending, and that is a difficult process to be involved in. Yet, as statistics show, Divorce has become much more commonplace, and living in a divorced home has seemingly become more of the norm.

            However, the process is still draining, and most people don’t know what to expect from the divorce process. In a divorce, one of the married persons files a Petition for Divorce, and in a typical case, the other party files a Cross-Petition and Answer. The parties seek decisions on parenting, division of assets, division of debts, child support, alimony, and other issues. Yet, when you first become involved it can be a very intimidating prospect.

            Thus, it is a good idea to identify a few important documents that you will need to understand in order to maintain sanity through the divorce process. The first, and most important, is the parenting plan. When it becomes final, this document will govern the parenting schedule for each parent, including holiday and vacation plans. This document also talks about the importance of co-parenting, which is something a lot of Courts focus on. In fact, in New Hampshire, all parties to a parenting petition or divorce with children are required to attend a child impact seminar. This seminar discusses the perils to your children if co-parenting fails, and provides parties with the understanding to grow as co-parents.

            The second document that is most well known is the Decree, or Stipulation, or Agreement, and it is this document that governs the division of the “stuff” as we like to say. This document will dictate who gets what, and who pays what debts. This document generally covers all property division, in addition to other tangential issues.

            The third document that is most well known is the Uniform Support Order, or USO for short. The USO uses State mandated calculations (a/k/a – “Child Support Guidelines”) to determine the child support awarded in each case. It also dictates insurance coverage issues for the children, as well as the frequency of payment of support.

            At Parnell & McKay we put our extensive experience to finding a palatable solution for you and your family as you are going through a divorce. We offer the collaborative process, along with a lot of experience litigating a multitude of different divorce cases. If you find yourself overwhelmed by the divorce process, contact us today. 

Navigating the NH Circuit Courts: Things to Know

            A few years ago, our Court systems faced a significant problem. The model they had structured themselves with was not working, cases were being delayed, and litigants were being frustrated. The New Hampshire legal community, Administrative Office of the Courts, and the legislature got together and completely reformed our court system. Out went the old, and in came the new Circuit Courts.

           

            While many people have not had issues with the new Circuit Courts, it is important to understand a few of the more important changes as part of this reconstruction project. First, the Courts are generally all located in the same physical place, but they now bear new names, like the 10^th Circuit Court – Family Division at Derry, which used to be the Derry Family Court. A call center has also been initiated, which has freed up the clerks to process Court orders and do other paperwork that was being delayed by their interactions on the phone. While the transition has been slow and methodical, many callers find themselves having their questions answered by the call center now and not the specific Courts.

            However, not all changes have been met with positive results. For instance, many people are not aware that the Court will unilaterally close a court file if the last order was issued over thirty days in the past, and no pending motions or hearings are scheduled. This can come as quite the surprise, as it now costs about $150.00 to reopen those files and have new or old issues addressed.

            It is also important to make sure you know the docket number to your case. If you do not know it, the Courts can require you to file a request for information that costs $20.00 to file. The docket number is the number assigned to your specific case. It includes the Court code, the year the action was first initiated, letters symbolizing the type of case it is, and finally a number that specifically identifies your case. It is very important number to remember, and you should always make note of your docket number if you are involved in the New Hampshire Court system.

            At Parnell & McKay, we have a tremendous amount of experience navigating the New Hampshire Court system, both old and new. If you find yourself in need of legal help, contact us today. 

Workers’ Compensation: How to Make Sure an Injured Employee is Getting What They Deserve

            Injuries happen to all of us. Often, a person will be injured at work as the result of the duties of their employment. It is at these times that an injured person must understand the workers’ compensation system, and how to protect your rights.

            When a person is injured at work, and they have to miss time, the first thing they should understand is that your medical visits are covered. If an injury occurs during the course of employment, then the workers’ compensation insurance carrier will be required to pay for the medical services provided for treatment of that injury. If the insurance carrier denies the payment of a medical bill, and the Department of Labor finds it should have been paid, the insurance carrier will also likely have to pay for the injured employee’s attorneys fees. This helps injured persons with little resources to help facilitate getting the legal help they need.

            The injured employee is also entitled to workers’ compensation wage benefits for the time they miss work. This figure is based on sixty percent (60%) of the average weekly wage of the injured person. Thus, if a person makes $1,000 a week in average weekly wages, they will be entitled to $600.00 per week in wage benefits. 

            The injured employee may also be entitled to compensation for any permanent impairment as a result of the work injury. This is commonly referred to as the “Permanent Impairment Award”. This is based on the disability the injured worker has, and the effect of that disability on their ability to work. A typical situation would be someone who lost a hand in an industrial accident, and now has a very serious permanent disability. The injured worker is entitled to a calculation based on the injury, the permanency of that injury, and the wages the worker was making before being injured.  All of these are factored into a complex calculation that compensates the injured employee for their permanent disability. Our firm will also help assist disabled persons in obtaining social security disability benefits, if they qualify.

            Workers’ Compensation law is complex, and requires the aid of an experienced attorney in navigating the system. Here at Parnell & McKay, we have been providing our learned and experienced advice to our workers’ compensation clients for over 20 years. Contact us today to find out how we can help you. 

Unbundled Services: How a Greater Portion of the Population has Gained Access to Legal Services

People now have greater flexibility than ever before in accessing and utilizing legal services. “Unbundling” of legal services is now allowed and the effect should be greater accessibility to legal services by segments of the population historically unable to secure needed assistance of counsel in dealing with legal projects. The one exception to this new form of representation is criminal law. Unbundled services is a development we at Parnell & McKay, PLLC are very excited about as it means we will have much greater flexibility in customizing services to fit clients’ particular needs where money is a real issue for the client.

Simply put, unbundling means breaking down a project into its component parts. Once a legal project is broken down, it is easier to determine what a particular individual is capable of doing on their own and what they may need assistance to complete. A home remodeling project is a good way to demonstrate unbundling. Included in the typical bundled remodeling project is framing, drywall installation, wiring, floor covering installation and painting or wallpapering. After breaking the project down to its components, or “unbundling” the project, one can determine what he or she comfortably can do and with what components he/she will need help. For example many are comfortable painting or wallpapering but might be uncomfortable with the other components of remodeling.  With an unbundled approach to remodeling, the homeowner secures services only in the components he or she does not feel skilled enough to handle.

How does this process work? It is actually pretty simple. Like the remodeling example, any legal project can be broken down into component parts. For example let us take a simple divorce. Among others, components of a simple divorce include initiating the action with a petition for divorce; engaging in discovery (the process of learning the other side’s case, how they intend to support it and securing information from the other side that helps present your case); document preparation; determination of support issues, property settlement, motion practice and court appearances. An individual contemplating a divorce or finding themselves a party in one initiated by their spouse and wanting to explore the option of unbundled services, simply determines, ideally in consultation with a legal professional, what components of the process they are comfortable handling and the components with which they would like assistance. An agreement is then made, and the attorney does the agreed upon work, and the client handles the rest of the matter they are comfortable with on their own.

At Parnell & McKay, PLLC, we pride ourselves in being in the forefront of this new movement toward unbundling of legal services. Our goal throughout our existence has been to provide competent legal services at a reasonable cost. If you find yourself in need of legal help, contact us today.

Collaborative Law – How the Collaborative Process may be right for you

            As our main site explains, the collaborative process is most prominent in family law. In this arena, its benefits are very much amplified.

Each party signs an agreement to commit to the collaborative process. This agreement includes a number of provisions that describe the commitment to the process, and working out the differences without the necessity of Court involvement.

            The reasons these provisions are included is because the Court process can be a long, arduous, and emotionally draining ordeal. Parties that wish to work with legal, financial, and psychological professionals can utilize the central tenets that serve the backbone of collaborative law. The financial advisor is a third party, selected jointly by the parties and their attorneys, who has training both in the collaborative process, but also serves as the expert the parties need to understand complicated financial matters. The psychological professionals offer sage advice on parenting, co-parenting, and handling the stressors of the new life the parties are beginning. Each legal professional, an attorney trained in collaborative law, then works with all parties to develop an agreement that is fair and reflects the equal input of everyone involved.

            The process itself takes place after each party and professional has an opportunity to gather and review the party’s documentation. A meeting is then conducted with all parties and professionals present. Each party is afforded an opportunity to speak openly and discuss the issues in a civilized and appropriate manner. Sometimes, it can take a few meetings to work out the entire agreement. However, commitment to the process always bears fruit, because the parties learn critical communication and coping skills to deal with new issues as they arise. This helps eliminate future legal costs, and gives the party the tools to resolve any and all future conflicts.

            Attorneys that practice collaborative law are specially trained, as Catherine McKay is at Parnell & McKay. If you would like to see the benefits of collaborative law, please contact us to learn more. 

Injury Claims - The Road Map to Getting Back to Normal - Part 2

            In the last blog post, we talked about how obtaining documentation and other information will help make it easier to resolve your injury claim. To build on that, it is important to understand what comes into consideration when considering the settlement value of an injured person’s claim. It is important to understand this in order to make sure you are getting the compensation you deserve.

            At the outset of any injury case, someone has been injured in some way. Like everybody else, this person will receive medical treatment for their injury. The hope is that they can recover, and get back to 100% of their previous health. Sometimes, there is no getting back to 100%, which is a difficult situation to be in. In either scenario, their doctors will tell them when they are no longer expected to improve. This is called reaching “maximum medical improvement”. At this point, it is time to try to evaluate the claim to determine what a fair settlement is for the injured party.

            Each claim is made up of the cost of your medical treatment, and other assorted damages. Medical bills make up the bulk of each injured person’s claim. Typically, if they get back to 100%, this will only include their past and present medical treatment. If they find themselves permanently injured, then future medical expenses are included in the claim. Other expenses that an injured party is entitled to compensation for are past/present/future lost income, mileage incurred going to appointments, and pain and suffering. Of all of these things, pain and suffering is the most difficult to value. Insurance adjusters know this, and if an injured party does not have experienced counsel, they leverage this uncertainty into a lower settlement that may not even compensate the injured party fully for their medical treatment.

That is why at Parnell & McKay we have utilized a time-tested process to accurately account for all of these uncertain expenses. We know how insurance companies evaluate your claim, and we have extensive experience getting our clients the settlements that they deserve. We also have experience trying jury cases, and with that knowledge, we can advise our clients on what a jury of your peers, or Judge, would likely decide, and how that affects the decision you make on settling.

If you find yourself injured, contact Parnell & McKay today. 

Personal Injury Claims – The Road Map to Getting Back to Normal

The key to understanding personal injury claims is that claims handling is driven by insurance requirements. The vast majority of injury claims are resolved by settlement.  The parties to the settlement discussions are most commonly the injured party, his/her attorney and an insurance company. It is necessary to know how insurance companies process claims in order to achieve the best possible result. The most important thing to remember is that insurance companies rely heavily on objective information to form a valuation of each claim. This comes in the form of medical and billing records, accident reports, pictures, lost wages documentation, and other related records. The more complete your documentation the better your chance of a satisfactory result. Gathering documentation should be your first priority when you suffer from an unfortunate injury.

Here at Parnell & McKay, we make information gathering a top priority in each injury claim we handle. Our attorneys have the knowledge and know how to be able to track down every piece of important documentation on your claim. We understand what insurance companies are looking for, and we exert pressure on insurance companies based on that knowledge in order to obtain the highest settlement for our clients. We have secured millions of dollars in compensation for our clients using this time tested practice, and look forward to helping future injured parties get back on their feet.

If you were injured, read more about our personal injury practice here. As always in injury cases, consultations are free. Contact us today.

Proposition 8 Overturned on Appeal: How the Court Found the Ban on Same-sex Marriage Unconstitutional

            Many people have heard of the most recent decision of the 9^th Circuit Court of appeals in Perry v. Brown. This is the case that challenged the California law that bans same-sex marriage. Proposition 8 was passed in a general election where a majority of the voters of California enacted the legislation banning same-sex marriage. Legal challenges were quick, and the 9^th Circuit’s opinion was the latest in the same-sex marriage debate.

To understand the decision from a legal perspective, it is important to understand the legal distinction that same-sex couples are not recognized as a “protected class” within the definition of America’s equal protection laws. Certain classifications of persons fall into legal protected classes under our laws. This is typically understood as gender, race, color, and age. The tests applied to these classes are different than that which applies to the people as a whole. Same sex individuals have not been established as a protected class, so laws that infringe on their rights have a test called the “rational basis” test that is applied when they challenge a law that infringes upon their rights as same-sex individuals. There is a strong burden applied that the law being challenged is valid under this test.

            In the Perry case, the attorneys understood this and sought to either prove or disprove that the law was rationally related to a legitimate government interest. The challengers succeeded in arguing that the law was not rationally related to the regulation of marriage. They asserted that the distinction between same sex and opposite sex couples had no basis in law, as both could adopt, have children, and lead monogamous lives together. The appeals court agreed. Judge Reinhardt wrote, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.”

To read more of Judge Reinhardt’s opinion, click here. If you find yourself in need of family law services, please contact us. 

The New Hampshire Family Division's New Mandatory Disclosure Rules: How to find and understand the new requirements

            In every family case involving divorce, parenting, annulment, civil unions, and more, the Court is now requiring each party to disclose documentation to the other party. The documentation includes tax returns, paystubs, and health insurance information among other general financial documentation. Yet, the important part of these new rules is that they are mandatory. If you do not disclose, then you will face penalties. A party might not be able to offer any document into evidence, or even talk about that evidence at trial if the document was required under the new rule. A party may not even be able to conduct additional discovery (information/document requests), or file any discovery motions seeking information if they did not comply with the rule.

            What does this mean for someone new to the family court? Well, you can find a copy of the rule here. As you read through it, you notice it mostly has to do with assets of each party involved in the case. For a divorce, this is easy to understand. But how about an unwed parent case? Well, the answer to that question lies generally in the area of child support. Courts want to have as much objective information as possible in order to make a more sound and reasoned decision. This helps avoid unjust or over-burdensome support orders that were based on limited information.

            If you need help in complying with the mandatory disclosure rules, we offer unbundled services. In fact, you will find William Parnell and Cathy McKay listed on a number of the Court’s unbundled lawyer list. We also offer comprehensive representation throughout any process involving the Family Courts. To contact Parnell & McKay, click here.

U.S. SUPREME COURT FINDS PLACING GPS TRACKING UNITS ON A SUSPECT’S CAR VIOLATES THE CONSTITUTION

             In a landmark decision in United States v. Jones, the Supreme Court looked at whether police can attach a GPS unit to a suspect’s car without a warrant. Antoine Jones was a nightclub owner in Washington D.C. and was suspected of drug trafficking. The FBI and the D.C. Police investigation included tapping the phone of Mr. Brown, and monitoring his nightclub. This investigation led to the authorities obtaining a warrant to place a GPS unit on Mr. Brown’s car, which was registered to his wife. However, the warrant required the GPS unit to be attached within ten days. It wasn’t attached until the 11^th day, making it a warrantless attachment. The authorities then used this GPS unit to gather data over the course of the next four weeks. The information they obtained through the GPS was integral to indicting and convicting Mr. Brown. Mr. Brown then appealed his decision, claiming a violation of his constitutional rights.

            The fourth amendment states, in relevant part, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In order to tell when and where a violation has occurred, the Supreme Court has adopted the “reasonable expectation of privacy test”, which was explained in a previous case written by former Justice Harlan. He stated that a violation occurs when government officers violate a person’s “reasonable expectation of privacy.” A reasonable expectation of privacy in a thing is normally understood as someone’s home, or private space. A car on public street presented a difficult question. This gave the District Court and Appeals Courts great pause, as they had difficulty finding that anyone had a reasonable expectation of privacy while driving on public roads. However, the Supreme Court disagreed, finding that a person has a reasonable expectation of privacy in their vehicle. Considering the way we can sometimes live out of our cars, it seems the Supreme Court reflected a common view of the privacy we expect while in our cars.

In this case, the Court found that Mr. Brown did have a reasonable expectation of privacy in his vehicle. Of great concern to the Court was that the Government was essentially arguing that they could place a GPS unit on any car they want. In fact, the Government told the Supreme Court justices during oral argument that they could attach GPS units to their car without a warrant and track their comings and goings.

            In striking down the conviction, the Court unanimously agreed that such conduct by the Government was a violation of Mr. Brown’s constitutional rights. How would you feel if the Government attached a GPS unit without a warrant to your car? Let us know in the comments section below. To read the full decision, click here: (http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Can you get divorced without ever being married?

            In a recent case decided on January 13, 2012, the New Hampshire Supreme Court decided that very question. The case is titled In the Matter of Mallet v. Mallet, and it involved a couple that had lived together for almost fourteen years. This was no ordinary unwed couple, as they had children together, repeatedly told others they were married, wore wedding rings, owned property together, shared the same last name, and even told people they had participated in a wedding ceremony.

The mother, Tami, petitioned for divorce and argued that they were married by “estoppel”. Estoppel is a legal concept that involves three basic factors: (1) a knowingly false representation or concealment of material facts; (2) a recipient who was ignorant of the truth and who was intentionally induced to rely on the misrepresentation; and (3) a resultant injury. The Court decided not to address whether New Hampshire would even recognize a marriage by estoppel, because the mother never believed that the parties were married. Thus, it failed prong two of the estoppel test, as Ms. Mattel was never ignorant of the truth that they had never been married.  However, there still remained the question as to whether it was proper for the Conway Family Division to divide the parties’ assets, debts and property when they were never married.

Judge Albee, the parties’ Judge at the Conway Family Division, had decided that such claims were within the jurisdiction of the Family Court. The Supreme Court disagreed. At issue was the language of New Hampshire statute RSA 490-D:2, which governs the jurisdiction of the Family Divisions of New Hampshire. Typically, the family division does not have jurisdiction over division of assets or debts between parties that are unmarried. That jurisdiction typically lies with the Court of Equity, which are our Superior Courts. Judge Albee felt it was inequitable to have the Mallet’s property division case in the superior court, and the determination of the parties’ parenting rights and responsibilities to be determined in the family court. The Supreme Court found this decision was ignoring what they called ‘the plain language of [the statute].’ The Supreme Court held that the Family Division’s jurisdiction is only acceptable in division of property cases if it is brought through a divorce from a legally recognized marriage. Without the legally recognized marriage in the Mallet’s case, the Court found that the Conway Family Division incorrectly assumed jurisdiction. This meant that the Mallets would have to divide their property and debts through the Superior Court, while also needing to continue the parenting case in the family court.

To divide unwed property, assets, and debts, unwed persons must file a petition to partition, which also has its own statute (RSA 457-C). Here at Parnell & McKay, we have taken on a number of unwed cases and had to pursue each aspect in both courts. Is this a fair ruling by the Supreme Court given the complaints of judicial waste in New Hampshire? Please comment below and let us know how you feel about this ruling. To read the ruling yourself, click here: (http://www.courts.state.nh.us/supreme/opinions/2012/2012008mallett.pdf). 

Introduction to Parnell & McKay Law Blog

With the launching of our new website, Parnell & McKay is happy to announce we will be instituting a new law blog. The blog will focus on developments of the law in New Hampshire and Massachusetts, and will also touch on new law handed down by the U.S. Supreme Court. Our blog will address other issues, like the practical approach to law, and how to deal with common issues faced in even the smallest of cases. Our blog will also address issues facing the administration of our Court systems, and how to navigate them as our Courts go through major structural changes. Please check in daily to see what is going in with the state of law in New Hampshire.