Legal Spaghetti

Loving Trusts...without a lawyer?

noreply@blogger.com (Voyle Glover) — Tue, 09 Jun 2009 14:44:00 +0000

The term "living trust" is pretty common and has been the subject of marketing efforts for estate planning by a wide array of folks, many, if not most of them, non-attorneys. These are trust mills. They will often market a trust which is generic and call it a "Loving Trust." Now, it may have been originally prepared by an attorney, but there's no guarantee of that. There will be an appointment set up. Thereafter, an individual who is not a lawyer, will come to the home, explain the trust and why it is needed. He or she will collect the advance fee, and then leaves with the information he or she has collected. The documents will be prepared, and soon thereafter, the representative will bring the documents to the home for the signatures of the clients.

Sadly, these documents are often bloated, and are way too complicated for the client to begin to comprehend. I once had a client come into my office and angrily toss a 3-ring binder onto my desk and say, "I have no idea what this means! Can you help me understand it or get rid of it?" I had not prepared the trust. It came from one of the trust mills in a nearby state.

Many of these trust mills operate outside the boundaries of the law. Far too many of them are not licensed to practice law. If you are ever confronted with someone who is pitching you a trust, the first thing you need to ask is to meet with the lawyer at some point in the process. Ask this question: "Who is the lawyer who prepared this?" And then, ask to meet with the attorney. Often, no such person exists.

Typically, they will tell you that if you actually meet with the attorney, it will cost you more. But, I've seen the prices these folks who operate these trust mills charge, and you'd pay similar fees for an attorney to draft the trust, plus you'd get the extra value of knowing it was prepared by a professional. You'd also have the comfort of knowing that if you needed to make any changes, or ask any questions, the attorney would be available, whereas these guys often can't be found. Many of us (attorneys) will often answer simple questions about a trust we've done for a client, over the phone, and not charge for that advice.Good luck trying to get changes made to your trust with the trust mill folks.

Bottom line: Before you sign a document purporting to be your "Loving Trust" or "Living Trust," consult with a lawyer. The document may contain some surprises for you that you had not known, and that had you known, you'd have not allowed.(For some more information on trusts, listen to my podcast on Indiana Law)

Internet Client Makes Millions

noreply@blogger.com (Voyle Glover) — Sat, 18 Apr 2009 19:16:00 +0000

A few years ago, I did some legal work for a client whose primary sales came from the internet. Those sales were in the millions. Often, I'd be in the client's office all day and into the night, and the phone would ring constantly. The calls came in from all over the continental USA. On one particular day, I watched as one of the salesmen actually made $50,000.00 in sales in a single day. As the business grew, his record fell, when another salesman did over $100,000 in a single day.

What stunned me more than anything was that these were high-dollar items he was selling. It was not uncommon for a customer to make a $10,000 purchase. In conversation with the man in the company who made it all happen, he told me what he'd done, and how he'd done it. There was no hi-tech or fancy work required, but it did require some knowledge of how the internet worked and how to attract business to a web site. He had learned about selling on the internet when he'd written a book on IRA's and had it leap to a #1 spot on the New York Times Best Seller list. He quit doing accountant work and began selling his boss's products and when I last saw him, was earning well over 6 figures a year.

That experience spurred me to look closer at the web profiteers on the internet, those who are making tons of money selling products and services. It's been an interesting study. There are some very good courses out there for learning (as well as some very bad ones). The rule is definitely caveat emptor.

Trusts & Wills – the differences

noreply@blogger.com (Voyle Glover) — Sun, 22 Mar 2009 01:36:00 +0000

When you set up a trust, it is something that "comes alive," or is legally effective the moment you sign the trust document. A will is different in that while your will is legal, it really does not take effect in legal terms until your death. Prior to your death, it is not a document that is, in the strict sense of the word, "enforceable." For example, if you leave Susan $100,000.00 in your will, she cannot sue to get that will enforced, prior to your death, since the will is not going to be effective until it is probated (which is where the will is submitted to the Court and administered via the statutory processes mandated).

A trust works something like this:

Let's say you own a valuable painting. It's worth $100,000.00. You have your attorney prepare a trust, naming yourself as the Trustee, and naming yourself as the primary beneficiary. You also name a successor Trustee. Let's say you name your daughter (could be a son, or spouse) as successor Trustee. This is the person who will be the Trustee once you pass on, or if you're incapacitated. You also named your daughter (or son, or spouse, or children) as secondary beneficiaries. In other words, she (or they) will take the property after you pass on.

You also have language in the trust that says, in essence, that you get to use that painting all your life, and in fact, if you ever want to sell it, you can. Now, sometimes it isn't wise to have language like this in your trust as it can have some tax implications, but for this example, it works.

When you die, the successor Trustee comes in, values the painting, files any tax returns necessary, and distributes the cash remaining to the beneficiaries as spelled out in the trust.

A will works like this:

You have your lawyer draw up a will. It must be executed (signed) under very strict circumstances. The law is very precise here. For example, in most states, there is a requirement for two witnesses. If one of those witnesses does not actually WITNESS the signing of the will, your will can be contested, perhaps even thrown out. There was a rather famous case in the state of Indiana where one of the witnesses was staring out the hospital window in the room where the testator was signing his will. He didn't see the will signed. The Court refused to probate the will.

Here is some information on competency in wills and trusts in a podcast.

Fear in the Court Room

noreply@blogger.com (Voyle Glover) — Sun, 27 Jul 2008 02:28:00 +0000

Fear plays an important part in litigation.

Lawyers are afraid of losing, or perhaps intimidated by opposing counsel, and depending on the judge, they may also fear the jurist selected for the trial.

A courtroom is a always a cauldron of emotions. Lawyers are nervous, rehearsing their opening remarks, or furiously flipping through documents, looking for something remembered as being important; and the client sits at the table, gut tight with fear of the unknown, worried about how he’s going to appear to the jury, and very frightened about having to go on the stand. He’s afraid he’s not going to remember his part, and worse, he’s more afraid of the other lawyer.

Most witnesses who testify in a court room are inexperienced. They’ve never even been in a court room, and if they have, they’ve not likely been sitting next to a judge answering questions. It is a frightening event for many, if not most, witnesses. It’s especially frightening if the witness is afraid of being asked certain questions or being asked about certain aspects of the case that may be delicate. It might be the lawyer has informed the witness that there is some weaknesses in a particular area, and that if they don’t testify correctly, the case could be lost. That’s a lot of pressure on a witness, especially if he or she is a party.

On the stand, during questioning, the witness may reason this way: If I lie, I’m liable to get caught, and that is perjury, so something bad can happen, maybe even jail. Most witnesses are not knowledgeable about the penalties of perjury and assume the worst, to wit, jail. While jail is certainly a possibility, it is unusual.

As a lawyer, I always like my own witnesses to be calm and unafraid. Usually, they are, with me. It’s when the other side begins questioning them that they often get nervous and suddenly can’t remember things.

I once had a client who actually could not remember his name when asked by the judge. He was so afraid that when the judge, who was an ill-tempered despot, suddenly took him away from me during direct examination because he (the judge) wanted an answer to a question that popped into his little mind, that my client froze.

The judge, after asking his question several times, suddenly shouted: “Do you even know your name?” He was greeted by silence, whereupon, the judge said, “Seriously, what is your name?” Again, silence.

Finally, I intervened and asked the judge if I could continue asking my client questions. He leaned back, obviously frustrated, and I gently asked my client to tell the judge his name, which he did.

In another case, I was cross examining an executive. He did not appear to be nervous at all. He was pretty smooth and delivered his answers to his own lawyer in a powerful and convincing fashion. He worried me because he showed absolutely no fear. I began questioning him and he held up pretty good. He was making points with the jury. Suddenly, I paused for a long moment, then moved closer to him and stared straight into his eyes without saying a word. My stare was very unfriendly. Then, with a look and tone of voice that suggested I had some secret source of information, I asked him a question and made it sound as though I might already know the answer. I didn’t, of course, but I wanted to move him off that level of confidence he exuded.

He started to answer, then stopped. I could see he was weighing the options, calculating the damage he’d suffer if he responded with a lie and was caught, and the damage he’d suffer if he told the truth. He opted for the truth, since he assumed I already knew it, and to lie would make that truth worse. I saw the fear come into his face and eyes after that, and his voice was not the strong, vibrant one that had been wreaking havoc to my case. I played that game with him for about a half hour, getting information from him that was incredible and very useful for us.

Lawyers often play those kinds of games with people. Sometimes, they can backfire. But, sometimes they are very necessary.

There are just too many accomplished liars out there.

Fear can be a great tool for bringing out the truth.

(It can also shut a witness up quicker than duct tape.)

Copyright 2008 Voyle A. Glover, Esq.

The Value of the Life of a Housewife: Wrongful Death in Indiana

noreply@blogger.com (Voyle Glover) — Fri, 06 Jun 2008 02:29:00 +0000

A few years ago I met with a man who’d just lost his wife in an automobile accident. It was a terrible accident and he was left with two small children to raise. What made it even worse, the man was suffering from a serious physical disability. His wife was the sole “breadwinner” in the house. She worked odd jobs when she could, played nursemaid, cleaned and cooked, ran him to the doctors, and was mother and tutor to their two young children. She was an exceptional woman.

In the state of Indiana, and in most every other state, every “wrongful death” case (where a death is caused by the wrongful or negligent actions of another), requires that there is some evidence gathered showing the value of that person’s life. It is an unfortunate reality of our society that a life has to be valued in dollars in order to right the wrongful taking of that life (as though we could really measure one’s life in dollars). Our legal system is set up such that most wrongs are righted by compensation in the form of dollars. This is not to say there are not other non-monetary remedies. There are. The Court can, for instance, order a defendant to perform some kind of duty owed to another. But when it comes to personal injuries, including wrongful death, the primary remedy is in dollars.

I learned something in this case about valuing a life, particularly about valuing the life of a woman who did the kinds of things that wives and mothers typically do on a daily basis. This woman was a dedicated wife and mother. She was busy from the time she got up in the morning until she fell into bed late at night, exhausted. She’d get up early in the morning, fix breakfast for the family, then would help the kids get ready for school, then she’d rush them out the door with words like “Come on! Hurry or you’re going to be late for school!” as though being late for school was akin to missing out on Christmas.

Then, on many days, she’d return home, help her husband dress, then drive him to a doctor’s appointment. After she’d returned home, she might spend the day cleaning, washing clothes, or other household chores, including mowing the grass, or, in the winter, shoveling the driveway. On other days, she’d drive over and clean a house for money, or she’d help out someone who was in need of some nursing care (she was a nurse, but had to quit her job when her husband became disabled).

I hired an Economist and asked him to evaluate her worth as a nurse, calculating the money that she could have made in the job market for the duration of her working life; and then, I asked him to make the same valuation for her role as a housewife. I told him what she did on a regular basis. Her contributions to the household were then valued on those services she performed for the family.

The numbers was stunning.

Her value as a mother and wife was twice the value as a working nurse! Needless to say, I chose to present to the other attorney the value of her life as a mother and wife. The valuation was very instrumental in enabling me to achieve a significant settlement for my clients, the husband and children.

That case taught me a lesson as to the true value of a housewife. They do an incredible job, one that is often thankless. They are up in the night playing nurse to a sick child, and then they’re running a taxi service (when they’re not running a small eatery, filling the role of cook, waitress, and dishwasher). Then, they magically assume the form and nature of a maid, changing bedding, washing clothes, cleaning dishes, and a host of other chores that are never-ending. Housewives are incredible.

Would God husbands and children would learn to appreciate what they do.

No man can ever (truthfully) say that a housewife doesn’t work hard. If he does, he’s either lying or ignorant. Most housewives work harder than the man of the house. I’m convinced of that. (I know my wife works harder than I do.) Most men could not afford to hire a woman to do the amount of work a mother and wife does on a daily basis.

Men and children who take their wives and moms for granted ought to be sentenced to a week of having to do her work. All of it. And, to do it just as good as she does it.

(Most men would, thereafter, probably be willing to pay her substantial sums to stay on the job.)

Big Pharm & The Doctors vs The Tort Lawyers

noreply@blogger.com (Voyle Glover) — Sun, 11 May 2008 02:14:00 +0000

Eventually, it will happen. There will come a day of reckoning.

Eventually, it’s going to be common knowledge that the powerful pharmaceutical industry, aided by gullible doctors and a host of other well-meaning, but ignorant individuals and entities, have been engaged in the kind of cover-up akin to the one the cigarette manufacturers engaged in for decades. The tobacco industry knew for many years that their product was harmful. They had studies that showed the harm. After years of winning cases, they suddenly began to lose. It seems information had leaked out about the secret studies, and the information about the studies was no longer a closely-held secret. The “other side” knew about it. (For an excellent piece on the cancer "industry" see Breast Cancer Deception.)

Make no mistake, the same thing is going to happen in the medical world. You’re going to see, one day, litigation that is going to take a position that will attack the pharmaceutical industry as well as the medical industry. The lawsuits will allege, on the part of the doctors, old fashioned malpractice. But, with the pharmaceutical industry, the litigation will focus on what they knew, what they could and should have known, and what the science actually says about good health. They will be unable to plead ignorance. There will be a legal presumption of their knowledge about the scientific studies and conclusions on the subject. There is a wealth of data and thousands of studies out there that are showing us that cancer is closely linked to diet. The data also is showing us that the current treatments for cancer either not effective, or they are not as effective as they could be if the doctors would pay attention to the studies, the accumulated data that says cancer treatments that are coupled with dynamic natural treatment are far more effective than treatment that lacks that element.

Dr. Russell Blaylock is a board certified neurosurgeon, author and lecturer. For the past 25 years he has practiced neurosurgery in addition to having a nutritional practice. He recently retired from both practices to devote full time to nutritional studies and research. He is the author of several books, and more recently, a book entitled Natural Strategies for Cancer Patients. This book is “cutting edge” stuff. I predict it will be used by lawyers, eventually, in their quest to bring the pharmaceutical industry and the medical profession to court to answer as to why they have ignored what Dr. Blaylock describes so completely in the book that he spent over three decades researching.

Blaylock discusses how normal cells become cancerous, and goes into great detail as to the many ways nutritional intervention can interfere with cancer cell growth and spread. More importantly, he shows how the current data and studies shatters one of the myths firmly held by most oncologists, namely, that antioxidants interfere with conventional cancer treatments. Most doctors who treat cancer patients adhere to the myth (for which there is absolutely no reliable scientific data) that a patient should absolutely stay away from antioxidants (which are so good at destroying free radicals). Blaylock demonstrates that the truth is and always has been that a cancer patient needs antioxidants in his or her treatment.

The book is a “must read,” and it is a book that ought to be in the hands of every person who has cancer or who has a loved one with cancer. But, I think it’s a book that ought to land on your lawyer’s desk, too, especially if you lose a loved-one to cancer because a doctor refused to pay attention to what the scientific studies have been showing with regard to treatment of cancer patients with a holistic approach that includes proper nutritional therapy. (See: A Summary Paper Distilling Some of the Important Ideas and Research Being Done, Especially with Treatment of Breast Cancer. This is a pdf file)

Following is an interview with Dr. Blaylock that demonstrates some of the cogent arguments that he makes in his books.

Child Molesters in the Church - Church Policy

noreply@blogger.com (Voyle Glover) — Wed, 16 Apr 2008 22:34:00 +0000

Most Protestant churches do not have a “church policy” regarding child protection.

That’s unfortunate, because it can have serious consequences. If an incidence of child molesting hits your church, be sure that a lawsuit is likely to hit the church. That "hit" could be a crippling financial blow that might destroy it. It does not have to be that way, if the church would take certain steps to protect itself legally. Those steps necessarily involve the protection of the children in the care and custody of the church.

It is somewhat ironic that if you asked the pastor of most churches whether they had a Child Protection Policy, they’d indicate they do have such a policy. Sadly, they don’t even recognize what is meant by that term. The position of some, radical though it may seem, is that since everyone is against child molesting, then it can be said that it goes without saying that the church is against such things, thus, there is a “policy.”

Others are a bit more sophisticated.

One church I know held a view that sounds something like this: Every church member is against child molesting and for child protection. We take steps to watch out for this kind of thing. It’s a heinous thing and we don’t want any child harmed. Our church has certain standards with respect to the lives of our workers. If a worker is found to be living in sin, we will dismiss that worker immediately. We make sure a worker meets our standards even before they are accepted as workers. We will handle these kinds of issues ourselves. We know what to do. [and blah, blah, blah...]

Still other churches hold to the view that they watch out for such things and are very aware about the need to beware of sexual predators who might victimize a child under their care. They have security monitoring the premises. They warn the workers to be careful. Workers are instructed to never be alone with a child. All events are chaperoned by at least two adults.

But, they still don’t have a church policy. They think they do, but in reality, they don’t.

A church policy must have, at a minimum, the following features:

1. It must be in writing.
2. It must be designed so as to reasonably protect the children in the care and custody of the church.
3. It must be disseminated.
4. It must be implemented.
5. It must be followed.
6. It must be comprehensive, that is, it must cover all the bases.
7. It must be understood and understandable.

Many, if not most, church leaders assume they have a “handle” on the issue. They presume to understand what it is that the church must do in order to protect both the child and itself. But, far too many do not. Some do. But, many are ignorant of their ignorance.

For example, I recall a conversation with a pastor who was one of those who assumed he had things under control. One piece of the conversation went something like this:

VG: So, if you’re called to the stand, you’d testify that everyone in your congregation knew about your policy?

Pastor: Well, maybe not everyone. But, we did talk about it with the deacons and everyone in that meeting got a handout, plus every Sunday School teacher got one.

VG: So, if you had a worker who wasn’t in that meeting, would he or she have gotten that handout?

Pastor: I, uh, well, I don’t know. I suppose. I’m assuming that the leaders would have made sure of that.

VG: But, you realize that you would be the one on the stand answering questions like that? And you do understand that the old proverb, “the buck stops here” is very much applicable?

Pastor: Sure. I will make sure every worker gets a copy.

VG: Suppose a child comes to the church for the first time with her parent and mom leaves her off in the Sunday School. Now, suppose further that on this particular day, a man comes to the Sunday School class looking for this child. And, suppose that on this particular day, there is a new worker there who didn’t get her copy of the “rules” you handed out. Or, perhaps she didn’t read them if she got them. She hands the child over, but it turns out the man is not her father, nor even a relation. He disappears with the child. Is there any liability on the part of the church?

Pastor: I suppose so, yes.

VG: I can tell you that for certain there would be. But, let me ask you this: Do you have any proof that you gave a copy of the policy to these workers? And if you do, is there any proof they read it? And, that they understood it? And, that they will comply with it?

Pastor: No.

As we talked further, it became clear that the “policy” they had was completely inadequate. There were so many potential problem areas not addressed that any jury would have found against the church because their efforts to protect the children in their care was not “reasonable.” Indeed, they took more security precautions to safeguard their cars and the premises than they did the children. It wasn’t because they were a bad church. They were just ignorant of the large number of areas that must be addressed, some of which are complex, in the undertaking of formulating a valid church policy. For example, they had no policy or even an awareness of the problem dealing with who is able to take a child out of his or her Sunday School class. It was kind of understood that if someone showed up for the child and knew the child by name, and the child went with them, that was all right.

If a church does not have a written church policy that is published to the congregation and followed regularly, then some day, a child will be harmed and the church will be harmed. The harm to the child will be permanent. They harm to the church may prove to be “fatal” in economic terms, and even if not, the reputation damages may have consequences lasting for decades.

Predators are cunning, devious, and able to spot vulnerabilities in a church system. Sometimes, there’s almost nothing you can do to protect against them. A dedicated molester will find a way. But, if a church makes it too difficult and places obstacles in the way, he’s usually going to look for an easier target. He’s got a virtual banquet of churches to choose from, ranging from those who are arrogantly ignorant, to those who are just ignorant. He’s not going to choose the churches that are aggressively establishing guidelines and policies designed to thwart his evil.

There is a book I highly recommend on the subject. It is designed to not merely inform, but to educate and motivate. The book contains some useful forms, but most of all, it contains all the reasons why your church, if it is to survive in the coming days as an outreach to the community, must address the issue of what to do about protecting the children and the church. The book is entitled “Protecting Your Church Against Sexual Predators.”

I may be a bit biased, but frankly, I think it is a “must read” for every church member, not just the leaders. An informed church is a church on guard.

An ignorant church is a "candy store" for a child molester.

Some day, one will visit your church.

It's almost a statistical guarantee.

Heparin: The Road to China has Potholes

noreply@blogger.com (Voyle Glover) — Sat, 15 Mar 2008 01:54:00 +0000

On November 2, 2007, I underwent open heart surgery. During the surgery, I was administered the drug Heparin. I had an "allergic" reaction to it. Subsequently, my recovery was pretty dicey. I had days in ICU where I suffered from extreme bouts of heat, so much so I had to have a fan blowing directly on me. That diminished, but a week later, I still had periods of time when I'd go through several hours of extreme heat.

Also, I had difficulty breathing. For days, especially in the night, I'd gasp for breath. I recall one night curled up in a fetal position, so weary, tired of the constant gasping for breath and wondering if I was going to make it.

Now, I've learned that there's been a massive recall of the drug Heparin. It seems the product, made in China, had a bacterial agent in it, or the drug was in fact, a counterfeit! Incredible. I'd certainly like to know whether I've gotten something that, in a dozen years is going to do me in, or turn my skin purple, or cross my eyes. One thing is for certain: the reaction I got from Heparin came close to putting me on the other side of life.

All that to say this: In our society, we routinely expect the roads upon which we motor to be hazard-free. We expect that when we top the rise of a road, that it will continue. And, when we are given a drug, we expect it to be free of contaminants. But, that's a "road" that is becoming increasingly filled with potholes, and roads that suddenly end, with no warning signs posted.

Unfortunately, in the world of "Big Pharm," we are at their mercy. They make a HUGE profit off the drugs they sell to us. If drugs were gasoline, we'd be paying $20.00 a gallon. Lots of money in drugs, legal or otherwise. The Drug Industry is a powerful lobbying group, and it's no wonder that they seem to be able to get away with stuff that makes the tobacco manufacturers look like sellers of cotton candy.

Speaking of "legal," one certainly has to wonder how it is that a drug manufacturer can license a company in a foreign country (like China) to produce any drug that will be consumed in America, where there is absolutely no ability on the part of the U.S. Government to monitor the manufacturer for cleanliness, for quality control, or any of the normal demands made by our government on U.S. companies who manufacture products which we consume, including drugs.

Maybe it's time we begin to put some pressure on that cabal of legislators who cater to these companies who are willing to put us at risk. I say it's time to put the careers of those legislators at risk, be they Republican, Democrat or whatever.

Copyright 2008 - Voyle A. Glover

Sex Discrimination in a Nutshell

noreply@blogger.com (Voyle Glover) — Wed, 27 Feb 2008 01:02:00 +0000

The Law

The main statutory (law-based) protection against sex discrimination is under federal law and is found under what is commonly called “Title VII.” The Civil Rights Act (See: 42 U.S.C. §2000e, et. seq.) provides that it is unlawful for an employer (private employers with 15 or more employees, employment agencies, and labor organizations) to “fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual because of such individual’s ...sex....” 42 U.S.C. §2000e-2(a)(1). Sexual harassment is also prohibited, though it is not specifically mentioned under the statute. The United States Supreme Court in the case Meritor Savings Bank, FSB vs. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399 (1986), held sexual harassment was in fact, an element that can be implied to exist within the statute.

After the Supreme Court and appellate courts began what was perceived to be a regression or reining in of the rights under the civil rights laws, Congress passed the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). This law expanded the rights under Title VII and enforced the notion that victims of discrimination, including sex discrimination and harassment, were going to have substantive remedies. It also stopped the courts from making regressive rulings in certain areas of the civil law arena.

The new law expanded the remedies and rights, including the right to a jury trial, and to compensatory and punitive damages. Previously, Title VII provided equitable remedies, limited the party’s right to trial before the bench (judge), and limited damages to back and/or front pay, costs and legal fees. That was it. No punitive damages were allowed and no compensatory damages. However, the law is now that if a victim can show certain elements in her (or his) case, that Plaintiff will be entitled to damages caused by mental anguish or emotional sufferings.

There are other, lesser used statutes that may be applicable where someone has been a victim of sexual discrimination, including , 42 U.S.C. §1983, which prohibits a person acting under color of state law to deprive any person of his or her constitutional or federal rights. A Plaintiff may, if applicable, bring a claim arising under §1983, in the same complaint as the claims arising under Title VII. Other statutes may also offer protection, depending on the facts and circumstances in your case. See: 42 U.S.C. §1985; Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988); 20 U.S.C. §38; 42 U.S.C. §2000e-k; 29 U.S.C. §206(d); 29 U.S.C. §2601 et seq.

State law claims may also be brought, but in the state of Indiana, it is more common to use the broader, stronger federal laws and use the state laws to include tort claims, such as intentional infliction of emotional distress, constructive discharge, assault and battery, retaliation and defamation. Note that the mere fact that there is a wide array of available remedies does not mean you have a case or claim under any particular remedy. Every sexual discrimination case is fact sensitive. That means you must have facts that are going to support your legal claims made under any particular statute or case law upon which you base your case.

Establishing Your Case

You must have certain elements present in order to make a valid claim of sex discrimination or harassment or retaliation, or a hostile work environment (based on your gender). There are many things that can be alleged in a case, far too many to mention here. Suffice it to say, your claim must allege that because of your gender, you were singled out for treatment that was different from your co-workers of the opposite sex or that in some way, you have been targeted by an employer because of your gender, and that you have suffered harm as a result. (I have purposely made this very broad statement. I’ll clarify somewhat later.) For example, a supervisor makes unwelcome advances and makes it clear that if you do not comply, you will suffer consequences such as denial of promotion, or assignment to a less desirable position, or discharge. The question at trial to that supervisor, of course, would be whether he or she made such proposals to those of the opposite sex of yourself. (This article does not deal with same sex discrimination, which can also be actionable.)

It is not necessary that the supervisor touch you or even attempt to make an unwanted touching. It is sufficient that the proposals are made and that a job detriment occurs as a result of your non-compliance. In some instances, one may prevail even where a tangible job detriment did not occur, since the threat alone can cause mental and emotional suffering. The threat of firing or demotion can be a heavy weight to bear. In addition, having to work in an environment where you are subjected to unwelcome advances, whether by a supervisor or co-worker, is clearly a hostile environment, which is actionable.

You must prove at trial by a preponderance of the evidence that the conduct on the part of the supervisor was unwelcome. However, if you consent to the advances, you may find yourself on the losing side of a your lawsuit. It definitely will not help your case. However, it does not mean that because there was a consensual relationship that you have no case. If you broke off that relationship and refuse to continue it, and as a result you suffer a job detriment, you can still prevail. Much will depend on how the jury perceives your situation and your employer’s responses to the situation.

And that leads to another important element: You must make a complaint to your employer, even if is a situation where the owner of the business who is the main individual discriminating. If you’re confronted with a sexual harassment or discrimination situation in the workplace, ordinarily, you must inform the employer. The Court is going to want to see that the employer had (a) knowledge of the discriminatory acts; and (b) had an opportunity to remedy the situation. For example, if a co-worker is sexually harassing you and you say nothing to your employer, then you quit your job and file a complaint against your employer alleging sexual discrimination, the Court is not likely to find the employer liable (absent other evidence/factors or circumstances).

Laying a Foundation: Here are some important steps to take in laying a foundation for your case:

1. Make a verbal complaint to your superiors. Ask to speak to someone in authority, even if you think it will be pointless and that they will do nothing. This is true even if the person doing the discrimination is the President and owner of the company. If you can have a witness, great, but even if they will not allow a witness, you still should make the complaint. However, do not be shrill. Do not yell and do not threaten. It does not mean you cannot be emotional. Just don’t get mean and ugly. It’ll not help your case. Be assured that in trial, the employer will embellish your actions.

2. Memorialize the conversation. That means, within a week, follow up with a written letter that recounts the conversation. Here’s an example of how such a letter might sound where the discrimination was done by the President and owner: “Dear Mr. So and So, on (date), I met with you and told you that I did not appreciate your sexual advances and asked you to stop. You replied that you thought that I would probably move up a lot faster if I were not so uptight, implying that unless I gave in to your sexual advances, I would not advance. I told you I want this all to stop and hoped you would not hurt my career because of my refusals.” (This is only to be used as an example here. Do not copy this verbatim but instead, consult with an attorney as to the proper language and have him or her assist you in the drafting of that letter.)

You now have two important pieces of evidence in your case, should it go to court. First, you have your own testimony. Secondly, you have a written piece of evidence that is close in time to the actual conversation and that recounts or memorializes that conversation.

3. Keep a diary. Keep a written account of events. Make sure you date the events. Also, realize that everything you write will be read by your employer some day, should you end up in court. The process called “discovery” will require your attorney to turn over that diary.

Filing with the Equal Employment Opportunity Commission (EEOC)

The EEOC is a federal agency empowered to investigate and prosecute claims of discrimination. An employee must file an administrative charge with the EEOC before he or she can file a complaint in federal court (42 U.S.C. §2000e-5) It is important that you do not blow the deadlines for your case. Procedurally, you are required to file an administrative charge with the EEOC before you can file a complaint in federal court (42 U.S.C. §2000e-5).

Indiana is what is known as a “deferral” state, which means, among other things, that you have 300 days from the date of the occurrence of the discrimination to file your complaint. Note that “file” does not mean “mail.” If you mail your complaint on the last day and it is filed three days later, you have missed your deadline. In Indiana, which has offices under the Indiana Civil Rights Commission, you may file with a local office. They will then forward the complaint to the EEOC, but they do the initial intake. Or, you can go directly to the EEOC. Do not delay. If you go past the deadline, you may be unable to make a complaint because of the 300 day requirement. However, if you have discriminatory events that occur subsequently, make sure you file. Those events that are beyond the 300 day mark may still be used in your case, but your case cannot rest solely on that event.

The best thing to do, and one which is more likely to get the attention of the EEOC staffers and make your complaint more likely to receive prompt action (as opposed to prompt dismissal), is to see a lawyer and have him or her draft the complaint on the official EEOC forms. It must be notarized. The complaint is then either mailed (certified) or hand delivered, depending on your location. It is best to have a lawyer who has dealt with the EEOC, with you though the entire process, since he or she will understand the proceedings, and will give you a better chance at a successful mediation. (If you are a federal employee, it is, unfortunately, extremely important you retain counsel early in the process. It will save you from some serious mis-steps in the early parts of the process, since the administrative proceeding are somewhat complicated and confusing. Also, please be advised that the procedures discussed here are somewhat different, as are the timetables, so please don’t rely on the information given here if you are a federal employee.)

The EEOC will evaluate your complaint. A well drafted complaint with supporting documentation will get their attention and will typically result in an investigation. However, since the EEOC is understaffed, your complaint has a good chance of being found without merit. The EEOC will send you a letter stating they have no found no discrimination (called the “90 day letter”) Indeed, this is the finding of the vast majority of the complaints filed with the EEOC. Do not despair. It has no legal significance. It can’t be used against you in court. But, it does start the “clock” to ticking. At that point, you have 90 days to file your federal complaint in court.

Filing Your Complaint in Federal Court

If you have not already done so, find a lawyer immediately. Do not wait until the last week. Most lawyers will not accept a case where they have to prepare a complaint within a few days. There’s way too much work to be done in the drafting of a complaint and typically, the lawyer will not have the time to draft it. What I have done in some instances where a client sought my assistance at the last minute is to have the client prepare their own complaint. These are forms that are available at the Clerk’s Office in federal court. The client prepared the complaint (filled out the blanks), filed it, then returned a copy to me. I then began preparing an Amended Complaint. If you’re running up on your 90 day deadline and you don’t have a lawyer, at least get into the Clerk’s Office, get a form, fill it out and file it. That way, you will have stopped the clock and your rights are preserved.

The Process in Federal Court

It is a process that can be confusing to those who have never been there. The first thing that is done is to send the employer (the Defendant) a copy of the lawsuit–the complaint (and to any other defendants that you may have named in your complaint). Thereafter, they will file an Answer, which is a response to your lawsuit. Sometimes, they may file for an immediate dismissal (if, for example, you missed your deadline). The Court will schedule an initial conference between the lawyers for each side. This is to arrange certain dates and for the judge and the lawyers to get a feel for the cases insofar as time and scheduling. Certain information will be exchanged by the parties. There will be a “discovery” period of time where the parties will take depositions (oral questioning of witnesses, including the Defendant and the Plaintiff), and production of documents that are important to the case. In addition, there will be written questions sent by each side to the other called “interrogatories.”

Finally, at some point, usually after discovery, there will probably be a Summary Judgment Motion filed by the Defendant. This is a legal document filed by the employer asking the Court to dismiss the case of the Plaintiff because of a failure to state a legal claim that can be supported by the evidence. It is beyond this article to explain all the legal standards surrounding such a motion. Suffice it to say that in employment cases, they are almost always filed, and are often successful.

Assuming the Court denies the Motion for Summary Judgment, the case proceeds to trial. Much work is involved. There are many documents to assemble and an enormous amount of work by the attorney to prepare for trial. There are Motions to prepare, Jury Instructions, Trial Briefs, and depending on the case, there may be a need for legal experts. All the witnesses will require time for the attorney to develop, as well as preparing and assembling the necessary documents, including “demonstrative” evidence (“show and tell”). It is an arduous task requiring an enormous amount of time.

By the time you get to trial, more than a year will likely to have passed. The trial may take a week or more. At the end, a verdict is rendered. If you asked for a jury (and you should), the jury will return a verdict. After that, if you win, the Defendant may appeal. Or, if you lose, you may decide to appeal.

Conclusion

This has been an effort to give you the basics of a sex discrimination case in a “nutshell.” There are far too many variables to treat every circumstance in this article. For example, I’ve not touched on federal employees, though they enjoy the same protections, but have a somewhat different process on their journey to federal court (once in federal court, the process is the same). And, in most civil rights cases, there are genuine efforts by the parties to seek a settlement (which is where the Defendant pays more than they think they should have to pay, and the Plaintiff gets less than she thinks she deserves).

The information provided here is not designed to provide specific legal guidance for any individual who may have a claim. You should consult a lawyer who is experienced in this area of law in order to determine whether you have a case, and to assist you in preparing it, assuming you do have a case. The information here is merely designed to give you a broad overview of how the system works.

Copyright 2008 Voyle A. Glover

Beware of Filing a Discrimination Case pro se

noreply@blogger.com (Voyle Glover) — Sat, 16 Feb 2008 20:42:00 +0000

The Civil Rights arena is a very complex one. It’s not an area of the law well suited for the unwary, nor is it where someone can truly compete without a lawyer. There’s just too much that the lay person is not going to know that is crucial to their case.

For example, most Plaintiffs who file a discrimination lawsuit pro se (unrepresented by counsel) fail to understand the vital role of the process of discovery. It can be difficult for a plaintiff to remain in court with their case even with a lawyer, but without doing proper discovery, the odds are pretty strong that your case is going to be tossed out of court on the Defendant’s Motion for Summary Judgment. This is a motion that says, in essence, that there isn’t a material issue of fact raised by the Plaintiff to be tried to the jury or the court. Thus, if the court decides there is no genuine, material issues of fact to be tried, it may issue a judgment for the Defendant, dismissing the case. (This often happens in these cases, even when represented by counsel.)

One of the first things a Plaintiff must do in a case is to obtain discovery. This means, you absolutely must get witness statements in the form of an affidavit, but preferably by deposition, and you must obtain as much documentary evidence as possible that is supportive of your claims. This kind of information (depositions and documents) may enable you to show to the court that there are genuine, material issues of fact that must be decided by the fact-finder (usually, a jury).

Too many Plaintiffs go into court thinking that their words are sufficient, or that co-workers will support their claim, or that somehow there are records that will mysteriously appear to support their complaint. Sometimes that is true. But, such things don’t automatically occur. These are things that have to be unraveled. There are long, wiggly threads of evidence that must be followed, document by document, fact by fact, until you find the “meat,” the substantive fact(s) that support your claim.

So, before you begin piling up your plate, check with a lawyer who has dined in the federal courts and understands the proper way to devour such a plate of legal spaghetti.