En Banc? Not for Tom Brady, as the Second Circuit Deals Another Blow to Brady's Appeal

On July 14, 2016, the U.S. Court of Appeals for the Second Circuit denied Tom Brady’s petition for a rehearing en banc. Originally, two of three judges at the Second Circuit reinstated Brady’s four-game suspension. Brady was seeking a rehearing on the matter. This decision marks a victory for what might one of the final legal milestones for Deflategate. The decision by the Second Circuit is not surprising. The Federal Court of Appeals rarely grants rehearings save for particularly far-reaching and serious cases that implicate Constitutional rights.

Over the past year, New Englanders became extremely knowledgeable in the ideal gas law, the NFL’s Collective Bargain Agreement (“CBA”), and the role of a Commissioner in pro sports. While the Deflategate controversy is a personal subject for many of us, possibly impinging on our personal moral principles of right and wrong, the legal issue is relatively narrow. In simple terms, this is a dispute of the agreement the NFL players made with the team owners. Article 46 of the CBA allows Commissioner Roger Goodell to serve as fact-finder, judge, and arbitrator. Agree with it or not, this is what the players agreed to several years ago. Making matters worse is that facts determined in arbitration are beyond the scope of judicial review. As such, most legal arguments following arbitration must be related to the fairness of the process of arbitration, not the facts that led to case presented for arbitration.

Therefore, Brady’s legal argument focused on Goodell and the League’s inability to be consistent with the application of their own rules and inadequate notice of particular rules. To prove the Commissioner is guilty of legal wrongdoing, the party petitioning for relief must prove that the Commission behaved arbitrarily and capriciously. Despite how Patriots fans may feel, this legal standard is quite difficult to prove. After the finding denying the en banc hearing, the only legal recourse that Brady possesses is to petition the Supreme Court.

The likelihood of success here is similarly slim. Brady will be looking for a stay of his suspension as well as a writ of certiorari. Stays granted by the Supreme Court are rare and the average time a decision is reached on a stay is random, taking days or months.  Justice Ginsberg is the circuit justice for the Second Circuit. Therefore, she will be the judge ruling on whether or not Brady receives a stay. Like writs of certiorari, legal stays from the United States Supreme Court are exceedingly rare. Brady will have to convince Justice Ginsberg that the case deserves to be heard by the Court as a legal matter and that he will suffer irreparable harm.

The legal road for Brady ahead is a tough one, but not impossible. Still, it seems like Jimmy Garoppolo will be the Patriots starting quarterback on September 11, 2016.

It is interesting to note that lawsuits relating to rule-based consistency frequently happen in the NFL, but not other sports leagues. Unlike the rest of the commissioners of the “Big Four” major sports leagues, Roger Goodell is not a lawyer. In this day and age, one can wonder how much longer the NFL can feasibly continue to run their business without an individual with legal training and the ability to comprehend laws, rules and statutes in order to maintain regular consistency.

Many other state agencies and private employers operate under their own sets of rules and regulations similar to the NFL. Insurance agencies have equally complex coding and procedures. The rules and regulations developed by these entities can often be written in legalese that is hard to comprehend. The lawyers at Parnell, Michels & McKay will help guide you through whatever legal issue that you may be having. If you are interested in any of our legal services or have questions and concerns about issues you may have in your life, please contact us to learn more. 

Grandparent Visitation Rights

            Family Law incorporates a number of intermingled and particular issues, often wracked with emotional turmoil and questions over a variety of rights. Grandparent Visitation is one such area. Strained family relationships can lead to parents cutting off contact between a grandparent and a grandchild. Fortunately, New Hampshire’s laws can provide some relief to grandparents in distress.

            Grandparent Visitation Rights are governed under RSA 461-A:13. While Courts in the state consider a number of factors, two factors are weighed more heavily than others. Courts will consider what is in the best interest of the child and whether the visitation would interfere with the parent-child relationship or the parent’s authority. As a general rule, a parent’s decision governs this issue. Still, the New Hampshire Legislature and Courts provide a number of opportunities for grandparents to assert their visitation rights if certain circumstances arise, including the death of parent or the absence of the nuclear family.

This past March, a case appeared in front of the New Hampshire Supreme Court, In re Lundquist, 134 A.3d 951 (N.H. 2016). The case helped determine some of the more confusing case law and statutory language regarding the ability to bring a petition. When a father passed away, the maternal grandparents sought visitation rights. The grandparents argued that both the absence of the nuclear family and the death of a parent provided standing as there were no prior problems with visitation before the father’s death.

It was unclear as to whether these such grandparents could have standing as their child, the mother, still lived. Some argued that the statute can grant standing upon the death of a parent, but only to the deceased’s parents. The reason was that the grandparents would be “stepping into” the deceased parent’s role. The Court found that the maternal grandparents could have standing considering the plain meaning of the statute took no such particular stance as to restrict which grandparents could apply for visitation. While the Court would still need to consider the best interests of the children, the Court could not deny the maternal grandparents’ petition on technicality simply because their child still lived.    

            At Parnell, Michels & McKay we seek to clarify laws that appear to be obscure, technical and confusing. If you are interested in learning more about grandparent visitation rights, or have questions and concerns about family law, please contact us to learn more. We want to help.  

Rory Parnell on Why Attorneys Should Consider Pro Bono Work

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Dog Bite Cases

                Dogs are man’s best friend. Most of us have had them as a part of our families over the years. However, dogs (especially poorly trained dogs) can be highly dangerous animals. When they attack, they can cause lasting and permanent physical and emotional scarring. Some breeds (like pit bulls) can cause even more significant damage because of their physiological makeup. These breeds are often black listed by insurance companies because of this. Often, insurance companies will charge higher premiums to dog owners who own dogs like a pit bull or Doberman pincher. This is not necessarily because they are more aggressive than other dogs, but because the damage they cause is so much more significant.

                In New Hampshire, dog bite cases are strict liability. This means that the owner of a dog is strictly liable for injuries caused by their dog’s attack. So, an insurance company normally cannot claim that the victim of the dog attack contributed to our caused the attack. While there are exceptions to this rule (like deliberately antagonizing a dog), it is a very difficult defense to establish. Our firm also handles looking at whether other entities could be held responsible besides the owner, as it is not always just the owner’s fault for the dog attacking someone.

                While dog bite cases are not that complicated when it comes to liability, they are much more complicated when it comes to damages a person can suffer. Often, the injuries are open wounds but do not involve broken bones. They typically involve permanent scarring, which can have lasting effects both physically and mentally. It is also common to suffer significant emotional trauma from a dog attack. This can include the victim being unable to be around dogs for fear of their safety, or post-traumatic stress from the incident.

                At Parnell, Michels & McKay, we have experienced personal injury attorneys that can address all the ramifications of a dog attack. Contact us today if you were a victim of a dog or animal attack, and see how our team can help you. 

Massachusetts v. New Hampshire: Key Insurance Law Differences

                New Hampshire and Massachusetts share similar histories, but over time their laws have become different. One in particular is the Massachusetts’ consumer protection act (M.G.L 93A) and its sister law M.G.L 176D which regulates the practice of insurance in the state. The big key difference is that the Massachusetts’ consumer protection statute applies to insurance companies conducting business in the Commonwealth, while New Hampshire’s supreme court decided that New Hampshire’s consumer protection statute (RSA 358-A) does not apply to insurance companies. This was a frustrating Court decision that has had significant ramifications on people of New Hampshire being injured by unreasonable and unsupportable insurance practices.

                In Massachusetts, M.G.L 93A provides that if an insurance company violates M.G.L 176D, then the injured party (the Plaintiff in most cases) could be entitled to two to three times their damages, plus costs and attorney’s fees. In a lot of cases, this means a doubling or trebling of the judgment obtained in the underlying injury case. This provides a significant incentive to insurance companies to deal in good faith with injured Plaintiffs, as if they do not they can get hit with large judgments for their unreasonable practices.

                In New Hampshire, our only statute governing the insurance companies when they are unreasonable is RSA 417. This statute does not have much effect, if any, on the practices of insurance companies as they know the penalties for violating that statute are minimal. Thus, insurance companies have been protected by our legislature and Supreme Court to the detriment of its citizens. This was an unfortunate result, and one injured Plaintiffs in New Hampshire have been frustrated by since the ruling came down.

                While Massachusetts has always been more consumer friendly than New Hampshire, it is always important to note that New Hampshire does have some favorable laws. Two of them being no income tax and no sales tax, and the sales tax at least reduces costs for consumers.

                Still, it can be a frustrating practice, and it is important to know your rights in both states when you are injured. The Personal Injury attorneys at Parnell, Michels & McKay can help you navigate the legal field and get the best benefit possible in your case. If you are injured in either New Hampshire in Massachusetts, contact our office today to find out what rights you have. 

Collaborative Divorce - Why You Want to Consider the Collaborative Approach to Divorce

            Collaborative Divorce is an approach to problem resolution in the family law setting. In New Hampshire, parents are often required to discuss and agree on a “parenting plan” which encourages collaborative resolution.  It is an alternative dispute resolution technique for resolving conflicts and reaching agreements using cooperation rather than adversarial techniques and litigation. It recognizes the value of an attorney, but avoids the involvement of the Court. The idea is that the parties will fully cooperate in the process. The result of the process is that the divorcing parties develop skills through the collaborative process that will assist them in addressing not only the issues common to divorce, but also the inevitable issues that all parents confront as their children grow.

            The Collaborative process incorporates three principles: A promise not to go to court to resolve issues; an honest and open exchange of information and a desire to achieve a resolution that puts the priorities of the parties and their children first.  Mutual respect and mutual effort in resolving issues to achieve both parties’ goals is at the heart of the collaborative process.  Through this process the parties together control the outcome, not the court. This leads to a meaningful result that is the product of contemplation and dialogue and not the artificial result that often occurs when the marriage is condensed to a few hours presentation in front of a judge.

            The collaborative process begins with the parties and their counsel signing a contract that obligates all to reach a resolution without court involvement. The contract includes an express provision that bars court involvement in decision making and requires the attorneys to withdraw and the parties to retain new counsel if the collaborative process breaks down. As a result, all involved, including counsel, have a vested interest in reaching a resolution using the collaborative process. This contract is a key tool in achieving the goal of developing effective relationships, solving problems jointly and preventing court battles that harm rather than help heal.

            At Parnell, Michels & McKay we encourage families going through the divorce process to consider a collaborative approach first. If you are interested in learning more about the collaborative process and how it may help you, please contact us to learn more.

LANDLORD AND TENANT LAW: THE EVICTION PROCESS

            Often clients, especially tenants, are confused by the eviction process. The first step in any eviction is to serve a “Notice to Quit” or Eviction Notice. The Eviction Notice spells out the basis for the eviction, and specifies the time period the tenant has to leave. If the eviction is based on failure to pay rent, a Demand for Rent should accompany the Notice to Quit. Both the Notice to Quit and Demand for Rent forms are available online at the NH State website.

            If you are a landlord and are not sure what you should put on the form, and what you should be evicting your tenant for, you should contact an attorney to help you. Our firm handles Landlord and Tenant matters, and would be happy to assist.

            If you are a tenant, the Eviction Notice does not mean you have to leave immediately. Once date you are asked to leave by your landlord passes, your landlord still has to file a Landlord/Tenant Writ in the local district court where you live. It is this filing that starts the Court action. If a Landlord/Tenant writ is filed against you, you should contact an attorney to help you.

            After the Landlord/Tenant writ is filed, and the Tenant files an Appearance in the Court action, the Court will schedule a hearing on the merits. It is at this hearing that the Court will decide whether the landlord or the tenant has the right to use and occupy the premises. If the landlord wins, the Court will issue a Writ of Possession that gives the Landlord the right to use and occupy the premises. This Writ of Possession must be served by a local county sheriff, and once served, the Sheriff will physically remove the tenant from the property. The hope is that the process does not go this far, but often it becomes necessary.

            Landlord Tenant law is wrought with minefields that, if a landlord isn’t careful, can create substantial liability to the tenant. It is strongly encouraged that if you need help with an eviction, or even just a better understanding of the process, that you meet with an experienced lawyer at Parnell, Michels & McKay that can help guide you through the process. If you find yourself in need of assistance, contact our office.