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Text, Tinder, and Twitter….oh my….

Like so many New Englanders, I am excited about the Patriots’ recent Super Bowl win. I actually thought of how to integrate the win into my monthly newsletter. Deflategate was an obvious topic, but it’s been over discussed by every reporter and person in the country. Then, out of nowhere, a photo of fan favorite Julian Edelman started spreading quicker than a Gronk spike. I am not going to speculate whether the photograph was authentic or ponder the ethical issues involved with posting it, but it did get me thinking about the exposure that we all have in our digitally obsessed world.

So many people innocently put information online.We all  post funny stories, cartoons, and photos. We think that our social media  accounts are protected, because we have customized privacy settings and security software. We see the photos that are circulated on Facebook, trying to provide a lesson to young students about how quickly people can “borrow” your content, but think our photos are safe, because of those protections.

The digital world offers less protection than most of us feel comfortable admitting.  Sometimes, it results from the innocent time when your friend copied your photo from Twitter,  to show someone else how cute your children are,  but, somehow, the photo travels into the wrong hands. What happens when a hacker or child perpetrator gets hold of the photo? How would you react if the photo is used for advertising without your knowledge or consent?

Often, potential employers actively search online for “dirt” on perspective employees. For every photo or statement that an employer examines, someone  is interpreting  what they think it says about the character and personality  of  the potential employee. How does a hiring manager react when all they find are photos of you with cocktails in your hand or constant posting during traditional work hours? Do they interpret it differently depending on your work history?

What is rarely discussed  is the privacy of electronic messaging. Many people realize that a text, instant message, or email can be forwarded or copied; however, what a lot of people don’t realize is that the contents of the text, instant message, or email can be found long after it is “deleted.”

In my world, everything is potential evidence. Photos, text messages,  and social media  posts can be used to prove my client’s case or discredit the other side’s argument. Your text and emails are proof of what you say to someone else. As the often quoted Miranda Rights suggest, “anything you say,  can and will be used against you,” under Massachusetts Rules of Evidence Section 901

When deciding if electronic evidence can be used in a case, the Court considers five (5) factors:

  1. Is the electronic evidence relevant to the case?  If you are getting a divorce and your spouse is claiming infidelity, a photo posted online or text, of you with a friend at a Red Sox game,  could be relevant if your spouse suspects that the other person is your new partner.  Moreover, mere membership or profile on a dating website, such as Tinder,  could support that you are unfaithful (or trying to be).
  2. Can it pass the test of authenticity?  If a witness confirms that the evidence is real and accurate, it will likely be allowed to either by the Court to support or discredit your case  Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359 (2014).If someone, who has first hand or expert knowledge, testifies that it was taken on April 10,2014,  at the Red Sox/ Yankees game at Fenway, their statement will likely authenticate the photo as real and accurate.
  3. Is it hearsay? When information is received from other people that cannot be adequately confirmed, it is hearsay. Unless an exception  to the hearsay rule applies, the information cannot be used as evidence. If you heard from Alex that Jeff committed a crime, it is probably hearsay; however, if you witness the crime being committed, your description of the event is not hearsay.
  4. Is the electronic evidence the “best evidence?” If the original document is no longer available, but a copy is, it will likely be allowed by the Judge. If a text conversation is deleted,  but somebody saved a screen shot, a judge would likely accept a copy of it as best evidence.
  5. Is the probative value of the electronic evidence outweighed by unfair prejudice?  If the evidence makes a reasonable person wonder “who DOES  that,” it is likely prejudicial.  If you are engaged in a child custody dispute, where safety is an issue, a text photo of you, happily playing on the swings with your delightful child, is usually wonderful and suggests good parenting. If the photo is of you, with your five year old child,  at a shooting range and the child is firing a weapon,  it would likely cause an intense reaction from most people; however, that prejudice would be outweighed by value of what the  photo is likely being used to prove, such as recklessness.

What should this mean to you? Be careful of what you put online; those online rants about your job or significant other could be a problem later and in an unplanned way. Be careful of how you appear in photos; perspective employers understand that you like to have fun, but do not want to hire someone who is irresponsible. Be careful of what you write in a text, email, or instant message; the words that you write are powerful and speak volumes about who you are, what you do, and how you think.

As always, please feel free to contact me for additional information or a consultation. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

Three Lawyers and a House

Is the title, “Three Lawyers and a House,”  the start of another lawyer joke? No, not this time. Buying a house is not usually a funny experience. To the contrary, purchasing real estate is usually quite stressful, because it is often the biggest asset and expense that people will have during their lifetime.

Massachusetts General Law ch. 184, Section 17B states, in part, “The responsibility of the attorney for the Mortgagee (aka the entity or organization who is lending the mortgage, typically a bank or mortgage company) is to protect the interest of the Mortgagee. Mortgagors (the person requesting a mortgage, usually the homeowner) may, at their own expense, engage an attorney of their selection to represent their interests in the (closing) transaction.”

Closing attorneys are usually pretty considerate to buyers and seller during the transaction. They typically are open to resolving any last minute negotiations or disputes; however, they are not obligated to do so.

Hiring an attorney to represent your interest is worth the additional expense; the cost is usually minimal, especially considering the overall expense of purchasing a home. What makes it so important to have someone on your side?

1. Buying a house is one of the most important legal agreements an transactions that you will enter into during your lifetime.You want someone to protect your interests and make sure that they are present in the agreement;

2. There are a lot of legal documents that you will be asked to sign and they can be confusing. You want someone who will take the time to explain to you what you are signing, to discuss the implication thereof, and answer your questions;

3. Errors happen even with the best attorney. You want someone to confirm that the terms of the loan are what you expected, because an error could cost you a lot of money during the life of the loan or cause an issue with your Title; and

4. Last minute disagreements between Buyer and Seller are not uncommon. You want someone to advocate for your position and make sure that any resolution is in your best interest.

Mortgagees will often allow your attorney to also appear as their Closing attorney; this is an exception, where the conflict of interest can be waived, assuming that all parties agree. By doing so, you can be assured that the Closing attorney is protecting you.  If you want your private attorney to serve as a Closing attorney, be sure that they are qualified to do so and that they have access to Title Insurance, with a reputable company, such as Old Republic Title Insurance Company, for which I am an Agent.

Hello, Daddy!

I remember when we brought our first child home. It was a time of joy, excitement, and very little sleep. We were fortunate that my husband was able to take a week or so off from work. I remember feeling a bit envious we my husband returned to work, but only because it meant that I would volunteer to do feedings after midnight, so that he could be relatively “awake” when he went to the office.

Starting in April, 2015,  new fathers will have an opportunity to take up to eight (8) weeks of paternity leave. Massachusetts General Laws 149, Section 105D, as amended by St. 2014 c. 484 provides eight (8) weeks of paternal leave for the purpose of giving birth, placement in the home of a child under the age of 18, or the placement of a child under the age of 23 if that child has mental or physical disabilities.

The newly amended law provides an amazing opportunity for all fathers. The men that I have spoken about this with have told me that they would be unlikely to take such a significant amount of time off from work; however, they seemed excited that it would give them potential flexibility.

Fathers must satisfy simple criteria to qualify for paternal leave. First, the father must have worked at the company for at least three (3) months or the probationary period of employment. Second, the father must tell the employer of his anticipated departure with at least two (2) weeks notice and his expectation to return.

Of course, there is are exceptions within the new law. The most significant areas of concern are relate to the work environment and are intended to protect the employer. The size of the company dictates whether the new father is able to take advantage of the new law. Similarly, where both parents work for the same employer, the total time of leave is limited to eight (8) weeks.

As my grandmother always says, “A new baby to love is always a good problem.” Under the new laws, new dads have a baby to love and can now decide whether they want to take more time to love that baby from their home. I think that my grandmother would consider that an excellent problem.

Please feel free to share this post with anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

Ready or Not…..

Parents are rarely ready to receive a diagnosis that their child is differently disabled or will face unexpected life challenges. Perhaps they knew that the diagnosis was coming, but, sometimes, it’s totally unexpected; either way,  they have entered a new reality.  Suddenly, they find themselves reading everything available on the Internet and being intimidated by terms such as “IEP” and “504 accommodation.”

Schools are obligated to provide services and accommodations for individuals with disabilities and special needs through Free and Appropriate Education (“FAPE). Appropriate education exists where a program is reasonably constructed to provide an academic benefit to a student based on the individual needs of that student.

Appropriateness is defined by Individuals with Disability Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”); they often co-exist, but can be exclusive of one another.

IDEA is a Federal Statute intended to ensure free and appropriate services for children with disabilities. IDEA covers students, ages 3-21,  where the disability adversely affects the child’s educational performance or ability to benefit from general education. Students who require services under IDEA benefit from an Individual Education Plan (“IEP”), which is usually  developed by a team that includes teachers, specialists, and parents of the child. An IEP states the services to be received, such as speech, physical or occupational therapy, or mental health counseling are the most frequent services contained therein, but additional accommodations can also be included.

504 provides an opportunity for accommodations to be made for any person with a disability so that he or she may participate, to the greatest extent possible, in any activity or organization, which is Federally funded, such as a public school. 504 is more broadly defined than IDEA; it includes individuals with mental or physical impairment that limit a major life activity, such as school, if that impairment is either on record or generally known. Under 504, a student can access support, including, but not limited to, auxiliary aides, an altered education environment, behavior management, modified testing, or repeated instruction.

Both IEP and 504 accommodations require that a written document specify how a program is to be executed for the specific student. For parents, it can be an emotional, stressful, and overwhelming experience. Both special education lawyers and advocates are able to assist families in developing the document, but only a special education attorney can litigate the matter, if it becomes necessary.

Please feel free to contact me for additional information or a consultation.

Is Aaron Hernandez guilty?

Given that both my practice and home are in the same town in which Aaron Hernandez resides (when not in prison) and also where the murder of Odin Lloyd was allegedly committed, I should not be surprised that I have been asked so many times within the last couple of days, “Why is the Aaron Hernandez verdict taking SO long? Does this mean that the jury is going to find him not guilty?”

Overall, people seem frustrated that the verdict has taken more than “10 minutes.” Popular opinion convicted Hernandez a couple of years ago; however, the actual process of trial by jury is much more complicated.

There was a substantial amount of evidence presented in Commonwealth v. Hernadez. Even the most casual follower of the case knows that there was a lot of evidence not allowed to be presented by the prosecutor during the trial. Excluded evidence was either irrelevant to proving the alleged crimes or too prejudicial given the probative value (what it is intended to prove). Even after all of those exclusions,  the jury has an enormous amount of information that they need to review and discuss during deliberations.

The Court provides instructions to the jury prior to any deliberation. All jurors are given a mini-lesson in legal proceedings and substantive law, which can be complicated and extensive. Often, such as happened in this case, the jury requires clarification on the meaning of a law.

The real work begins once a jury enters the deliberation room. First, the jury must elect a presiding juror or foreperson. Depending on the number and personalities of the jurors involved, this process can take a while to determine who should serve in this important position. In a high profile case, like Commonwealth v. Hernandez, there may be hesitation to be chosen as foreperson, due to concerns of notoriety or, potentially, safety.

The foreperson must be organized and assertive. In addition to making any needed inquiries of the Court and delivering the verdict, he or she is responsible for focusing and guiding the discussion.  The foreperson must be careful to allow everyone an opportunity to speak,  respect all opinions and viewpoints, review and follow jury instructions, examine all evidence, and discuss each alleged crime, one at a time. He or she must also organize any and all voting during the deliberations.

Voting in the jury room can occur at several times during deliberation. Some juries vote soon after entering into deliberations, but most wait until all evidence and corresponding law has been discussed and reviewed extensively. Voting can be anonymous, by written ballot, or out in the open, by verbal commitment or raising of the hand. There often multiple rounds of voting, as well as persuasive and heated discussions, prior to the verdict.

A verdict is the most common outcome of a trial. When a verdict is delivered to the Court, it means that the entire jury has voted and agreed upon the decision about whether a defendant is guilty or not-guilty. Often, the prosecutor will poll the jury, or ask each juror to separately confirm the verdict,  to assure that the reported verdict is accurate. Occasionally, a verdict cannot be reached.

Mistrials usually occur when a jury cannot agree on a verdict. If a mistrial seems likely, the Court may attempt to intervene and provide additional instruction or clarification, hoping that it will help the jury to reach a verdict.  Mistrials are fairly unusual, but often result in a new trial and with a different jury.

Is Hernandez guilty? That is not a question for me to decide (you didn’t actually think that I was going to answer that, did you?). Even if I followed the case religiously, which I did not, it would not be my decision. The jury has the tough task of deciding whether he killed Odin Lloyd. They must use evidence presented, not gut instinct, speculation, or media reports, in reaching their verdict- and it must be beyond a reasonable doubt.

As always, please feel free to contact me for additional information. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.