Monday, July 20, 2020

How Do You Know When to Contact a Personal Injury Lawyer?"

General Injury Lawyer
Determining if you need a personal injury lawyer for your claim is not always easy. Especially if you have been in car accidents before, you may think that all you need to do is call the insurance company. This may or may not work in your favor but most people think that this is simply the way it goes. However, personal injury attorneys want you to know that you should not expect things to go poorly when you get in contact with someone else’s insurance company. In fact, it can seem like people are out to get you and are not on your side and the truth is you may be right. While we do not encourage our clients to be paranoid, we do want to give you a healthy dose of reality. Even if the other party’s insurance agent seems like the nicest person in the world, their job is not to make sure you get the compensation you deserve after an accident. It is to make sure their company pays as little as possible.

Personal Injury Claims and Getting a Lawyer
With this in mind, you may be wondering if you need a personal injury attorney for all claims you make against someone else. We have written down a helpful list of times when it would be especially prudent to have a personal injury attorney from our firm on your side.

1. Your injuries are severe. In some cases, you may find that you have minor bruising and do not wish to even make a claim. We understand not wanting to make a big deal out of nothing. However, when your injuries are more obvious and severe, you may have a bigger personal injury claim on your hands. Typically, the more severe your injuries are, the bigger the compensation and the longer it will take you to recover. You don’t want to rely on yourself to fight a personal injury claim when you are recovering from your injuries.
2. You have a disability. When an accident causes you to have a permanent disability or a long-term disability, the lawyers at Cohen & Cohen can explain how it can be particularly difficult to try to determine what type of compensation you deserve and how much. A personal injury attorney who has knowledge of personal injuries and disabilities is the right person for the job.

If you would like to speak with a personal injury attorney about your claim, please contact a nearby office now.

Thursday, July 9, 2020

Emojis can have legal consequences.🥺

👨‍⚖️ An emoji is "any of various small images, symbols, or icons used in text fields in electronic communication (as in text messages, e-mail, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc." Since 2010 emojis have become common in popular usage an some emojis have acquired standard definitions.  Emojis have gained acceptance in personal communications as well as business communications.

12 most commonly misunderstood emojis | Daily Mail OnlineA number of courts have examined specific communications in which emojis were used.  These cases addressed the issue of what, if any, legal effect is to be given to the communication which used emojis.  In a Massachusetts case the District Attorney argued that an emoji with eyes crossed sent by the defendant to the victim was evidence of  premeditated  murder.  The court allowed the jury to consider the emoji as evidence.  A Colorado Court discussed the difficulty of interpreting emojis as it is a picture used to convey information.  The Court noted that interpretation is more difficult as the actual image created by the emoji can differ depending on the software used by each person.  An Israeli Court concluded that a contract had been created after considering a communication that used emojis.
Squirrel Emoji [Free Download IOS Emojis] | Emoji Island
Courts have interpreted emojis in criminal cases, contract cases, family law cases, sexual harassment cases, copyright cases, and a variety of other cases.  Court will continue to interpret emojis as long as people use them for communication.

⚖️ Balance Scale Emoji Meaning with Pictures: from A to ZIn all of these cases, the Courts treated the emojis as a form of communication.  Just as with any other communication, Courts have to interpret the communication.  Emojis can be difficult to interpret and Courts will continue to struggle with the meanings of individual communications.  When communicating on a subject that is important I advise that people should use clear communications and avoid the use of emojis. If you want to know the legal consequences of an emoji communication you should consult an attorney.

Saturday, July 4, 2020

After divorce update your estate plan and survivor provisions for assets

A divorce judgment will allocate assets between the spouses. This property division will address all assets owned by either party or both party without regard to the title prior to the divorce.  In many instances the final judgment will allow some or all assets to be allocated to the party who owned the asset prior to divorce.  Many of these assets will have contract terms that contain payable on death clauses.  Typically these payable on death clauses are paid to the surviving spouse. 

After a divorce, each spouse should examine all assets allocated to them and review the payable on death clauses.  In particular, life insurance policies, retirement accounts, pensions, investment accounts, and bank accounts should all be examined.  If the divorce decree requires death designations then there is a specific duty to conform to the requirements of the judgment.  If the decree is silent on death designations then each spouse is free to change the death designations to any person they want.  However, if a person still wants to make their ex-spouse the death beneficiary then extra steps must be taken.

Massachusetts law treats any death designation to an ex-spouse as revoked upon divorce.  This means that if a person wants their ex-spouse to receive death benefits they must take some action, after divorce judgment issues, to reinstate the death benefit.  I recommend that if a person wants their ex-spouse to continue to have death benefits that they state so in a will.  In addition, they should notify the trustee of the asset (life insurance company, brokerage firm, bank, etc.)  that they are ratifying the death benefit designation.  If a person does not write a will after a divorce then they should write their intention in a document that can be signed before a notary public.

If these steps are not taken, then the assets are not likely to be distributed as desired after death.  In addition, there is an excellent chance that litigation will be filed to determine who gets the asset after death.

It is strongly recommended that everybody who gets divorced should consult a lawyer and execute a will after the divorce. 

Wednesday, April 29, 2020

Massachusetts allows remote notarization of documents during the Corvid-19 emergency

Massachusetts is still suffering from Corvid-19 (Coronavirus) and all citizens are suppose to follow social distancing rules.  Businesses are permitted to open but must maintain social distancing and limit the number of people in an office.  People still have the need to execute documents.  Some of these documents need to be signed before a notary public.  Massachusetts government has recognized the need for documents to be signed before a notary public during this emergency by passing a law to allow remote notary witnessing of documents.  This law went into effect immediately upon the Governor signing the law due to the emergency nature.  The law expires three days after the Governor’s declaration of emergency terminates.

This bill has a number of requirements for remote notarization.  The following is a summary of the requirements of the new law:

Notary must witness signing of document by video and acknowledgment by principal
Notary and Principal are physically within Massachusetts (Principal swears or affirms this to Notary)
Principal discloses all other people in the room with Principal
Principal provides Notary with proof of identity
Government issued
Photo ID
ID displayed on video and then image of front and back emailed or faxed to Notary or sent with document
Original document sent to Notary by delivery or courier service
Notary record retention 10 years
If the document being notarized relates to the title to land the principal and notary must have a second video conference in which the principal verifies that the document received by the notary is the correct document.  A second form of identification is also required.
When notary affixes notary seal the recital must indicate that the document was remotely acknowledged
Notary executes an affidavit in which the notary states compliance with all of the requirements under the statute and retains the affidavit for 10 years.
Certain documents may only be notarized by a notary public who is also a lawyer or a paralegal working under the supervision of a lawyer.

Attorney Alan Pransky is also a notary and can assist people who have a need to have documents signed before a notary public.

Wednesday, March 25, 2020

Massachusetts emergency declarations and court ordered parenting time (visitation).

In an effort to fight the spread of Covid-19 (coronavirus) Governor Baker has issued emergency declarations and Health care advisories to enforce social distancing. He has declared a public health emergency. He has closed all non-essential businesses. He is trying to force Massachusetts residents to stay six feet away from other people. The Courts have issued their own set of rules for functioning during this emergency in which they are closed for all purposes except emergencies. What happens to Court ordered parenting time during this emergency?  

Chief Justice of the Probate Courts has issued an open letter addressing parenting time during the Covid-19 emergency.  This letter states that parenting orders must be followed unless the parent or child are quarantining.  The letter has several links that are helpful and discuss parenting in more specifics.

If there is a court order that specifically calls for parenting time during the Covid-19 emergency then those orders must be followed. Very few court orders will meet these criteria.

In all other cases, the parents should cooperate to allow parenting time in compliance with both the court orders and the emergency orders to the extent possible.  The ideal visit would keep the parent and child six feet away from each other.  A visiting parent can meet the child at the child's home and take the child for a walk, biking, or hiking. Perhaps the parent and child can have picnic. During these activities they can stay six feet apart.

However, if a visiting parent insists, then that parent can transport a child in a car or take the child to the visiting parent's home. The parent should not be able to take the child to a restaurant or a movie theater as these should be closed.

If visitation is being curtailed by agreement of the parents then the parents can increase telephone or video communications between absent parent and child.

Hopefully parents will agree on methods to allow parenting time and still keep social distance. In most cases, if the parents can't agree they can return to court to work out such matters. At present, the courts are closed for matters like this. A visiting parent who thinks that the other parent is violating court orders by denying parenting time won't have any remedies until the emergency is over and the courts reopen. At that time, the visiting parent can file a contempt action.

A contempt for violation of a court order has three elements:

      1. A clear court order
      2. A clear violation of the order
      3. The ability of the other parent to comply with the order.

In light of the Chief Judge's letter it is likely that Judges will make findings of contempt if a child is not permitted to accompany a visiting parent without something more than the declaration of emergency.  If someone shows symptoms of covid-19 they should be isolated.    A finding of contempt should not issue if a parent appeared to violate a court order to protect the safety of the child or the parent.  Protecting a child from exposure to someone with active symptoms of covid-19 is likely to be found to be necessary to protect the child and other family members.

Hopefully parents can cooperate during this emergency. However, if they cannot, consulting an experienced family law attorney may help the parties resolve the issues. If a parent thinks that a true emergency exists and they should file an action in court before the emergency is over, then they should consult an attorney on bringing an emergency action.

Saturday, February 8, 2020

Can a dead man's sperm be extracted for directed conception in Massachusetts?

Two recent news stories related stories of extracting sperm after a man died for purposes of conceiving a child. In a story from California, a man died in a traffic accident and his widow had his sperm extracted and then, through in vitro fertilization, conceived and gave birth to a child. In a case from New York, Matter of Zhu, a man died in a skiing accident. His parents went to court for permission to extract his sperm. The Court ordered the sperm to be extracted and given to the parents to make all decisions about conceiving a child.

This article addresses the possibility of extraction of sperm after a man's death in Massachusetts for the purpose of a directed conception. I use the term directed conception to mean conception for the purposed of creating a legal and biological child of the deceased man. The term does not include donation to a sperm bank where the sperm can be used for conception but the child conceived will not be the legal child of the male donor. A directed conception creates moral, ethical, and legal issues that don't exist with a non-directed conception.

The first post-mortem sperm extraction that resulted in the birth of a child occurred in 1999. Since then legislatures and courts around the world have addressed the issued. In 2002 the Massachusetts Supreme Judicial Court addressed the matter in terms of a post-mortem conceived child having inheritance rights and the status as the child of the deceased.

In certain limited circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights of "issue" under the Massachusetts intestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent or the child's other legal representative demonstrates a genetic relationship between the child and the decedent. The survivor or  representative must then establish both that the decedent affirmatively consented to posthumous conception and to the support of any resulting child.

The court did not address the issue whether spouse or a parent has the right to obtain the post-mortem extraction of sperm for the purpose of conception. It is possible that a spouse or a parent may want to create a biological child even if the child is denied the legal status of an heir of the deceased.

Massachusetts has enacted the Uniform Anatomical Gift Act which allows for “transplantation, therapy, research, or education” of parts of a human body after death. The language “transplantation, therapy, research, or education does not, necessarily, include harvesting sperm after death for creating an embryo. Certainly parties can argue over the interpretation of this language and, like other jurisdictions, can go to court to resolve the issue. An argument can be made that the Uniform Anatomical Gift Act does not address extraction of sperm for the purpose of conception.

One answer to the questions posed by post-mortem sperm extraction is that the intent of the deceased must control. Legislation and court decisions from most jurisdictions look to the intent of the deceased. Lawyers, when creating estate plans for male clients should address this matter.

While it is not clear that the Anatomical Gift Act will control post-mortem sperm extractions, the formalities of that law for establishing a persons permission and intentions for anatomical gifts should be recognized by courts to establish intent for post death conceptions. The protections afforded the deceased by this act should satisfy any judge who hears a case of this nature.

I suggest that when attorneys discuss estate planning with age appropriate males that they discuss posthumous sperm donation. They should ask the client about the following:

  • Does the client want to donate sperm to a sperm bank?
  • Does the client want to donate sperm to a specified recipient?
  • If the client directs a recipient for the sperm does the client want any child conceived from the extraction to be a lawful heir of the client?

If the client wants to leave instructions for a sperm donation then the lawyer should prepare a document that complies with the formalities of the Massachusetts anatomical gift act that states the client's desires. Any man that wants to permit such sperm extraction should consult an attorney to prepare a document that reflects his desires.