“PLEASE RELEASE ME (LET ME GO)”

Decato Law Office
Written by Attorney William A. Whitten.
 

The original lyrics were written by Eddie Miller and subsequently recorded by various artists, such as Little Esther Phillips, Jim Reeves and Englebert Humperdink. In the music industry it is a haunting melody and a plea to be released from the bonds of romance. In the law, “please release me”  has an entirely different meaning.
 
Most people over a certain age are familiar with legal releases and no doubt have signed releases, without giving it much thought. Often, it involves engaging in what some people consider dangerous activities. If you choose to skydive, SCUBA dive, race cars, mountain climb, etc., the sponsor of the activity will often have the prospective participant sign a “release” before allowing them to participate in the activity.

  I remember reading a release on the back of the admission ticket to a Dartmouth hockey game. There was general language about pucks leaving the ice and the chance of being injured by a flying puck. I do not recall if the Red Sox put a similar “release” on the backs of their tickets, with respect to foul balls, leaving the playing field.
    If a person actually reads and signs a release and is subsequently injured in the activity the question arises as to whether or not the release is valid and can prevent a law suit, or at least stop a law suit. The answer is, it depends. In strict legal terms a release is known as an “exculpatory contract.”
 
  The New Hampshire Supreme Court has issued various rulings on the validity of the releases. One oft cited case is Barnes vs. New Hampshire Karting , Inc., 128 N.H. 102 (1986). In Barnes the court upheld the validity of a “pit pass.” The injured person sued the owner of the race track, when he was injured in a collision on the race track. The key issue was the language at the top of the pit pass, which said “THE HOLDER ACKNOWLEDGES SIGNING WAIVER & RELEASE FROM LIABILITY BEFORE ENTERING THE TRACK AREA.”

The body of the release contained extensive language releasing the track owner from responsibility, in the event of injury. Even though the injured person said that the release had not been read by him, or to him, the release was upheld. The court did note that in certain situations involving special relationships, such as  a common carrier (i.e buses) , innkeepers, or certain public policy considerations, the releases would not be upheld. That logic did not help the injured party in Barnes.

  Generally speaking the language of a release has to be clearly set forth, conspicuous, readable and unambiguous. The purpose of the release is to excuse (release) someone from an act of alleged negligence. Of course, whether the language is conspicuous and unambiguous is often litigated. 

   If you are the party who is injured after signing a release, you may wish to consult with an attorney in an effort to determine if the release is valid. More likely than not, the person(s) who you may think were responsible for your injury, will contact their insurance company. The insurance company  will investigate and most probably will use the release as exhibit A and deny your claim. This does not mean your claim is not valid, it means there is a lot of work to do.
 
 If you are the person who may have a chance of being sued, it is better to have a release signed. It gives you some ammunition to possibly defeat the claim. The best option is to have adequate insurance to protect yourself and your business.

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Fair Use in the Trades

 By Attorney J. Justin Lancaster:

Many artists simply put their name on a painting.  A person who creates an original work, automatically owns rights to that work under the common law, which is owned for life (and 50 longer) if not earlier sold or yielded to another.  The (c) symbol, or ©, stands for "copyright.  The copyright symbol demonstrates an assertion as to ownership; but, it’s enough simply to identify oneself as the author, e.g., “All rights reserved, Justin Lancaster, 2011.”  Authors own their copyrights even if they don’t claim them with symbols.

At Decato Law Office™, we are often asked about the ©, ™, sM and ® symbols used to designate copyright and trademarks.  On many web sites you'll see something like "© 2011. Decato Law Office."  A corporation can own a copyright if the work was produced “for hire.”  You can register your copyright with the government Copyright Office, which puts the world on official notice of your claimed ownership, so that if your rights are infringed you have any easier time bringing a claim to stop the infringement and to collect damages and penalties.
A trademark is your name, slogan or brand that you use in commerce.  Under common law you own it within your market, if you got there first.  But, if you don’t tell people it’s your trademark with the (tm) or ™ symbols, then your rights are weakened.  A slogan is sometimes designated as a service mark, sM  or (sm). 

In most states, including the states of VT and NH, it helps to register your trademarks (and/or trade names).
Similar to a copyright registration, a federal trademark registration officially notices your ownership and makes it easier to fight infringement and recover damages.  The ® symbol is used following federal registration (but not for registration at only the state level).
You probably recognize the trademark "VERMONT MAID®."  It was first registered in 1920, by the Vermont Maple Syrup Company, Inc., in Essex Junction, VT.  But who owns that trademark now?  If you track it down, you'll find this brand is now parked solidly on "http://bgfoods.com", where you will be urged to follow the marketing on Twitter® and become a fan on Facebook®.  And at the bottom of that web page you'll note the line "© 2011 - B&G Foods, Inc. All Rights Reserved."  Dig into that web site just a little bit more, and click on "Terms & Conditions,” and find the following paragraph:      
"Copyright, Trademark, and Related Issues: This site belongs to B&G Foods ("B&G Foods").  The copyright to the contents of this site is owned by B&G Foods or other third parties who have licensed its use to B&G Foods, Inc.  Users may download material from this site for their own personal, non-commercial use only, and provided all copyright notices are kept intact. Any other copying, redistributing, or publishing of any part of this site in any manner is prohibited, unless expressly permitted herein."
Whoops! Am I violating B&G’s copyright by publishing a part of their web site in this newsletter?  Isn't my use here potentially connected to Decato Law Office's commercial interest?  That leads us to a very important limitation in copyright law, called the Fair Use Doctrine.
  
The doctrine of Fair Use has developed through a substantial number of court decisions over the years and has been codified in § 107-118 of the copyright law, found in Title 17 of the U.S. Code.  17 USC §107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.  The law also sets out four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work.
The distinction between fair use and infringement can be hard to draw.  There is no specific number of words or lines of text, or notes of music that may safely be taken without permission.  And acknowledging the source of the copyrighted material does not substitute for obtaining permission" (see  http://www.copyright.gov/fls/fl102.html )

So, why do I think my excerpt of the above material from B&G Foods, Inc. constitutes "fair use"?  Because, although some of you reading this may have been our commercial customers, the primary purpose of this communication is comment and education.  The nature of the excerpted text from the B&G web site is a legal notice that I'm showing you as an example in a free newsletter.  Compared to the entire text of the B&G web page, or their entire web site, I have used only a small amount of the text.  And most importantly, I've not at all impacted the "potential market for, or value of" this copyrighted piece of text; B&G Foods, Inc. is not going to be negatively impacted in any way by my using this specific example.  I'm not disparaging the company or their products.
A good guideline in the area of Fair Use is “do unto others as you would have them do unto you.”  If I imagine myself to be the CEO of B&G Foods, or perhaps their Web Master, would I care much about this particular snippet of text being used by a lawyer in Lebanon, NH?  Not likely.
You can see, though, where issues of Fair Use become more difficult to resolve so clearly.  How much of a textbook can a high school teacher photocopy and pass around to pupils before buying them all a copy of the textbook?  Does it matter that this is a public, nonprofit, educational use?  Actually, the answer is "it depends" and "a little".  The market for textbooks is use of the copyrighted material by students.  Where a teacher may be OK copying one picture, or one page, it is likely not Fair Use to copy and distribute whole chapters.
The Register of Copyrights has offered some examples of activities that courts have regarded as Fair Use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
                                              
© 2011, Decato™ Law Office          Trials & Transactions sM           
    “That’s exactly what we do sM”

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YOU REALLY NEED TO WATCH WHAT YOU SAY

 Written by R. Peter Decato, Esquire


A little more than 20 years ago, I was involved in a case that had a great deal of pre-trial publicity.  The case involved a French-Canadian truck driver who got involved in an accident that claimed the lives of two New Hampshire State Troopers and a prisoner they were transporting to jail.  Every day, either our local paper or the Union Leader would have something to say about the case.  The Canadian press was covering it too.  The case got even more notoriety when some bail issues in the case were discussed on the floor of the Canadian Parliament.
   
There are empirical studies about pre-trial publicity.  Many of them indicate that "for the most part juries are able and willing to put aside extraneous information and base their decisions on the evidence."  Courts, of course, are at liberty to issue “gag orders.”  These orders limit or prohibit commentary on a case by those charged with prosecuting or defending.  The whole idea is to avoid “prejudicing” or “tainting” the jury pool.  The goal is to be able to pick a jury as fair “as the lot of humanity would permit.” 
  
New Hampshire has adopted Professional Rules of Conduct. These Rules govern how attorneys “use the press.”  One of the rules states that “(A) lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  If, for example, I tell the press that the State’s main witness is a child molester, that statement might have the effect of tainting the jury pool and it might “materially prejudice” the adjudicative proceeding.  You can’t make these kinds of statements.
   
I maintain that these rules are frequently violated and little or nothing is done about it.  This is likely because no one complains to the Professional Conduct Committee.  Let me give you some examples.  Recently, I heard or read the news where a lawyer was being interviewed.  The lawyer said that the defendant had blown a 0.26 BAC (blood alcohol content).  I thought about the Professional Rules of Conduct.  Isn’t this a commentary about the performance or results of a test?  How or why is this appropriate to mention the result?
   
There doesn’t seem to be a week that goes by when I can’t find or hear a statement where a lawyer is “vouching” for his/her client.  This occurs when a lawyer gives an opinion that their client is not guilty or when a prosecutor states that the defendant is guilty. 
  
A lawyer can lawfully comment on the claim, offense or defense involved.  You can identify who the people are that are involved.  You can inform the public that an investigation of a matter is in progress and you can let people know about the schedule in the case.  You can ask the public to come forward with evidence and information and you can do other things to warn the public when there is known danger.  For the most part, however, you have to be careful what you say as you can easily run afoul of the Professional Conduct Rules.
  
All the above being said, sometimes you don’t have a choice but to speak up.  When your opponent is in the press beating you and/or your client down, you sometimes have to enter the fray.  The whole effort is to make sure the jury pool is not prejudiced and that you can ultimately get a fair trial.

“CREDIT WE DON’T DESERVE”

Written by Attorney Brad W. Wilder

    Does this sound familiar: borrowing against home-equity, to pay off credit cards or other loans. After consolidating the various loans, going out to eat and of course charging the meal on the now “zero” balance credit card. Our spending habits got out of sync, basically we were spending more than we earned. In part, it was out of necessity for food, clothing, property taxes, etc. But, a large part was just overspending. Remember the ads by a certain credit issuer: a very nice family at a ball game, or at a resort, detailing the cost of family fun. The punch line was “priceless,” for everything else there is ......card. Great ad to get people to spend money they don’t have.
    I mention this because we see an increasing number of people who are overextended and cannot make their monthly credit card payment. Home equity loans are tough to get, because house values have dropped. What to do? The ads to offer help with debt, are the “Debt Consolidators.” You know, we can settle your debt for a fraction of the balance. But, are they legitimate? Well, there might be some who are, but of the ones that I know of, through our clients, it has been a bad experience.
    Basically, the debt consolidators tell people to: (1)  Stop paying your credit cards;  (2) Send us some up front money (maybe $2,000.00, or so);  (3)  Send us a monthly payment and we will negotiate with the credit card company and get them to take less than what is owed.  So far, our clients have seen minimal negotiation, ruined credit and, in many cases,  law suits brought by the card companies for the balance owed. Not a good deal for the consumer.   So, BEWARE, BEWARE,  BEWARE.           
    If you are going to negotiate do it directly with the card company. More likely than not they will want a lump sum payment of perhaps 65% to 75 % of the balance. Keep in mind with debt reduction, comes the concept of “income.” In January you will probably receive a 1099-R from the card company, for the amount of the debt written off. This will be reported to the IRS and you will have earned taxable income for the amount of the debt written off. Not a great scenario, but the amount of taxes owed will probably be lower than the amount written off.
    If you have a child or young adult heading off to college or already in college, I read one report where seniors are graduating with thousands of dollars of credit card debt.   Have a sit down talk with your student and urge them to not to take on any credit card debt while in college.   If they need money, they can work in the dining hall, fold towels in the gym or in the time honored classic, beg mom and dad for money!     Remember,  the repayment of student loans often awaits.

It was all about a virgule!

Written by Attorney Brad Wilder.

There is often a conception that the practice of law is only about being familiar with the law.  Although the law, whether passed by our legislature or interpreted by a court, is often what occupies a lawyer’s time, too frequently matters turn on issues that have nothing to do with the law
    Awhile ago, I was representing  a client in a complex real estate matter.  My client was purchasing many acres of residential and commercial property.  The closing was complicated.

 What made the closing particularly cumbersome was the fact that my client was buying property in the name of two different limited liability companies.  Further, a like-kind exchange was involved, not to mention the fact that the seller, another limited liability company, had two members (a minority member and a majority member).

    For two hours on the day of the closing, I went through various documents with my client, the majority member’s attorney, and the minority member’s attorney.  Everything seemed to be in order.  Everyone was on board to complete the purchase and sale. 

    As the closing was coming to an end, the attorney for the minority member suddenly noticed something on various documents he did not like.  The majority member had signed various documents on behalf of the limited liability company, but under her name there was a designation that she was the “Member/Manager” of the limited liability company.  This “Member/Manager” designation was not satisfactory to the attorney for the minority member.  He was unwilling to allow any closing document to reflect a “Manager” designation.

    The majority member was present for the closing, and became very upset with the suggestion that she was not the manager.  Her attorney chimed that his client had documentation vesting her with managerial responsibilities.  The attorney for the minority member, however, remained adamant that he would not allow any closing documents to designate “Manager.”

    After a few terse words were exchanged between the other attorneys, I suggested that the issue really boiled down to what the slash meant between “Member” and “Manager.”  I indicated that the slash meant “or”, thus the documents were fine and did not need to be altered.  The attorney for the minority member, however, was unpersuaded.  He would not bend.  After some further debate, it was agreed that the term “Manager” would be removed from all closing documents.

    I have to admit that when I was in school english was never a subject that held my attention for very long.  Colons, semi-colons, the placement of prepositional phrases, and how to make certain words possessive were all things I felt were best left to reporters, authors and college english majors.  As long as I was able to convey my point, even if it meant the occasional use of “ain’t”, I considered my knowledge of the english language just fine.

    But somewhere in my education, I must have learned more than I needed to know.  I actually remember learning about that slash that sometimes separates words.

    After the closing, I went to my trusty dictionary to confirm what I believed to be true.  The “ / ” that appears on our computer keyboard, and is commonly used to separate words is called a virgule.  A virgule is used to separate alternatives.  Thus, when used in the phrase “Member/Manager”, the virgule may mean a person is either a member or a manager.  Use of the virgule does not necessarily imply that a person is both a member and a manager.

    Believe it or not, the issue involving the virgule did not end with the closing.  The very next day, the attorney for the minority shareholder called to thank me for conducting such an efficient closing.  The attorney mentioned, however, that he had consulted with his law partner about what the slash in “Member/Manager” meant.  I was told that the law partner did not agree with my opinion.  In response, I suggested that he look up the word “virgule” in his dictionary.
    I have heard nothing more about the virgule.  For part of a day, the practice of law centered around the meaning of a simple slash.

The Majesty of American Justice.

 Written by: Attorney Peter Decato
Lebanon NH

It was likely in the late 1950's that Norman Rockwell painted a scene called the “Jury Room”.
This picture graced the cover of the Saturday Evening Post and it has hung in my law office for
many years. In this picture, you see a smoke filled room, with one female juror and eleven male
jurors. It is clear what is happening. The female juror is holding out and the eleven men are
furious with her. This jury likely was unable to reach a unanimous verdict and had to tell the judge “they were hung”. As a result, a mistrial had to be declared and the defendant had to be given a new trial. In early February of this year, I lived out the “Jury Room” in a recent criminal case heard in the Grafton County Superior Court.

Defendant  was charged with two counts of aggravated felonious sexual assault. The jury had to decide whether Defendant was guilty of none of the counts, both of the counts or one of the counts. When the jury returned, it found Defendant was not guilty of forcible rape. They reached this verdict quickly and decisively. But, the jury didn’t fare as well with the remaining count - the count alleging that Defendant had sexual intercourse with someone whose consent was not freely given. They hung by a vote of 11-1. This vote caused a mistrial.

 On April 22, 2011, Defendant was found not guilty in 45 minutes of the second charge. Lest you miss what happened here: because a single juror held out in February, two months later, Defendant was able to have a second trial where Defendant was quickly and decisively found not guilty. When Norman Rockwell painted the “Jury Room,” I wonder if he knew that he was painting a portrait showing the majesty of American Justice.

In this country, we are entitled to be judged by a panel of our peers and it is only when our peers are in unanimous agreement that we are found guilty of a crime. 11 votes doesn’t cut it - only 12 does the trick. The Defendant very happy to have this civics lesson and so was I!

IF YOU’RE GOING TO REPRESENT YOURSELF, AT LEAST DO A GOOD JOB

BY: Attorney Peter Decato.
Lebanon NH

    I continue to be intrigued by the statistics:  50%-75% of the cases on file in our local courts (New Hampshire and Vermont) have at least one contestant who appears on their own behalf (as in representing themselves).  While representing oneself is a person’s right, I offer one admonishment: if you are going to represent yourself, at least do a good job!

    To help you do a good job, you should seek advice from an attorney. We can give you advice whether you are the person who brought the action or whether you are on the defense. 

    I don’t know why so many people want to represent themselves.  I can’t quite figure it all out.  I’m sure, though, for many people, it has to do with costs.  If being frugal is leading you to represent yourself, then how much more frugal can you be than to buy just a few hours of a lawyer’s time?  Investing in a few hours of a lawyer’s time can often be the difference between a well prepared litigant and a poorly prepared one.

    For those of you who are considering suing someone without the help of an attorney, I have a quiz for you.  I will wait until you get a pad and paper.........Are you ready?  Please assume you’ve been involved in a “fender-bender.”  As a result, your clunker (a 2000 Ford pickup) has been totaled.  You’ve received some personal injuries, but you’re not certain of the full extent.  You’ve lost two weeks of work and you expect to lose some more work in the future as you attend doctor’s appointments, undergo an MRI, etc.  Please answer the following:

    1.    Where can you bring suit?  What are the jurisdictional limits of our courts?
    2.    Can you simply fill out a form when bringing suit or must you say something definite covering a variety of subjects (e.g., duty, breach, causation and damage)?
    3.    Do you have to say your opponent caused the accident?
    4.    Do you have to indicate what your damages are, when you really don’t know yourself?
    5.    After suit is brought, can you ask your opponent questions?  Can you obtain documents from them?  How do you get information from other people (like the investigating police officer)? 
    6.    You’ve received some questions from your opponent and some of the questions seem very personal and totally unnecessary (e.g., they want to know if you are having sexual relations).  Do you have to answer these questions?    How can you avoid answering questions in an appropriate situation?
    7.    Do you have to wait to go to trial or can you file a motion with the court asking for judgment “summarily.”  Are there shortcuts to getting to where you want to get?
    8.    Once the final hearing arrives, what do you do?  Who do you call as witnesses?  How do you ask them questions?  How do you question your opponent?  (By the way, your opponent has a “fancy lawyer” from the “big city”).
    9.    How do you prove what your clunker was worth?
    10.    What do you do with your medical bills?  How do you get them into evidence?
    11.    How do you get your doctor to testify?  He/she is telling you they are way too busy to come to court. 

    How do you think you did on this test?  I suspect you got some questions “right” and some questions “wrong.”  If you got any questions wrong, you could benefit from a consultation.  If you got them all wrong, you better get in here right now!

    The quiz I gave you dealt with a personal injury case, but I could have given you a quiz on a case involving a breach of contract, a divorce, or a defamation case or any other type of case.  Whatever the case, there are court rules and court procedures to know about.  It can get a bit complicated, but it isn’t so complicated that you can’t figure out what to do.

    Remember: if you’re going to represent yourself, at least do a good job.  As you know, when you’re not well prepared, a person who represents themselves has a fool for a client. 







               

Estate Planning. That’s exactly what we do.

 By: Renee A Harvey, Esquire
Decato Law Office  603-640-2020


Regardless of your net worth, it is important to have a basic estate plan in place.  Estate planning ensures that the important people in your life are taken care of and your financial goals are met after you die.  Now, it may be the subject matters involved – death, incapacity, probate, taxes – that causes many of us to avoid putting an estate plan in place; or it may be the uncertain economic times and the need to budget “nonessentials”.  However, by making the choice to forgo an estate plan and save money, in the long run you are not really saving at all.  Without a proper estate plan in place at your death, not only may your loved ones not necessarily inherit from your estate, your estate may have to pay the high costs of probate proceedings and attorney’s fees, not to mention a lengthy probate process.

How do you get started then? 

A good place to begin is to take inventory of your assets.  These include your real estate, insurance policies, investments and retirement savings.   Then you can ask yourself three important questions: (1) Whom do you want to make financial decisions for you if you cannot make them for yourself; (2) Whom do you want to make medical decisions for you if you cannot make them for yourself; and, (3) Whom do you want to inherit your assets?  By considering these in advance, your meeting with us will be more productive and expedite the planning process.

What documents are involved?

An estate plan has several components:

▸    Will.  A will provides instructions for distribution of your assets upon your death.  It recites family relationships, and it appoints executors, trustees and guardians to manage your assets.  Most importantly, it names the beneficiaries who are to receive your real estate, cash assets and personal property. 

▸    Durable Power of Attorney.  A power of attorney allows you to name and authorize another person to act for you in the event that you are not capable of acting on your own behalf.  This power terminates at your death, but provides you with someone who, in the event of your incapacity, has the power to step into your shoes and make financial decisions for you during your life.

▸    Health Care Power of Attorney.  A health care power of attorney also allows you to name and authorize another person to make medical decisions for you in the event that you are incapacitated.  This power also terminates at your death. 

▸    Living Will.  A living will speaks to your wishes regarding the use of life sustaining measures in the event of a terminal illness.  It does not authorize another person to make decisions for you, but it expresses your wishes regarding whether you do or do not want life support.  A living will, coupled with both powers of attorney documents can lessen family conflicts and avoid court intervention in the event that you are unable to make decisions on your own behalf.

▸    Revocable Trust.  A living trust makes sense for some people.  There are many different types of trusts that accomplish different goals.  A revocable living trust can manage your financial affairs during your lifetime, during incapacity, at your death, and after your death.  It is a vehicle that allows trust assets to avoid the probate process, therefore lessening the amount of time and money spent in the ultimate distribution of your assets.

    You cannot buy a sound estate plan off the shelf.  The quality is a direct result of your own interest, understanding and participation, along with the help of skilled advisors, because there is more to the estate planning process than just the documents.  Even if you already have an estate plan in place, it may not be optimal and it may be time to revisit it.  It will provide you with peace of mind to have a will in place and know that you have provided for those you care about.
   
   

Those frivolous claims and lawsuits!

 Written by Attorney Brad Wilder.

We all know the difference between right and wrong, and many times we know when another is not telling the truth.  In some cases, we can even produce evidence to prove it.  Equally important, however, is the expectation that none of us should be required to defend against frivolous arguments, claims or lawsuits brought by third parties.  The difficulties associated with being a lawyer are only compounded when a client seeks explanation why he/she should have to respond to frivolous allegations or claims.  I have never been able to justify nonsense.
    
    In most cases, our legal system runs effectively and efficiently, but then there are the exceptions.  What is particularly bothersome is that courts appear to do little to address frivolity and the expense associated with having to respond to it.
 
  From my perspective, judges are the gatekeepers that bear the responsibility of insuring that justice is carried out and the legal system is not abused.  This responsibility should include holding accountable those who elect not to tell the truth and those who bring arguments and claims that are unworthy of serious attention. 

The last thing I appreciate doing in my profession is trying to explain to my hardworking clients why they are having to defend against frivolity.  It seems I am having to address the question far too frequently.  Recently, I did not have a good answer for clients who asked  why a court is allowing someone to raise claims that were resolved years ago.  The only thing I could assure my clients is that a demand for sanctions would be made.  Whether the court would grant sanctions is a different issue than whether the court should.

News Item What Happens to Courts if the Federal Government Closes?

News Item What Happens to Courts if the Federal Government Closes?

Relevant and material evidence

Written by Attorney R. Peter Decato.

Trial attorneys often run into the phrase “relevant and material evidence.” Just like there is a
difference between “salt” and “pepper” and between “hot and cold”, there is also a difference
between relevant evidence and material evidence. The difference is subtle. Evidence is material if it is offered to prove or disprove a specific fact in issue. 

Thus, evidence is material if it relates to one of the particular elements in the case. For example, in a driving while under the influence case, if evidence is being offered to show impairment, it is material. If evidence is not material, the other party may object to the use of the evidence on grounds that it would mislead the trier of fact. The evidence might also get the trier of fact into collateral issues and thereby prove a distraction to the resolution of the real issues in the case. 

Immaterial evidence should be excluded. Some evidence may be admissible even if it does not bear directly on an issue of fact in the case. For this to happen, there has to be a relationship shown to the weight or credibility of the evidence. Thus, when a witness testifies their credibility, perception, memory and narration or communication are all material even though they are not directly related to an issue of fact.
 

Evidence is relevant as opposed to being material if it indicates a relationship between facts that increases the probability of the existence of the other. It must tend to prove or disporve a material fact in the case. Revelant evidence is viewed by its probative value. A trier of fact (judge or jury) determines the sufficiency or weight of the given evidence. In order for evidence to meet the relevance threshold, there must be merely some probative value. Relevant evidence used to prove or disprove an issue at trial is considered to be material evidence. Irrelevant evidence is inadmissible. Not all material evidence is relevant because although the evidence might deal with the particular subject matter, it lacks probative value because it is dealing with a collateral issue unrelated to the elements of proof in a given case.

Court Employees Could Have Their Jobs Eliminated - Mistake?

Written By Attorney R. Peter Decato.

A recent newspaper article indicates that about 60 court employees statewide could have their
jobs eliminated, reclassified or be demoted. For this to happen, the New Hampshire Legislature
need only approve a reorganization plan that will put district, family division and probate courts
under one rule. In my opinion, this is a mistake. 

The idea is to combine the courts into a circuit court with shared management. Gone will be the local clerk, the person the local attorney knows and speaks to on nearly a daily basis. All this is being done, as I understand it, to save $1 million a year. It isn’t worth it! I’m as fiscally conservative as anyone, but I’d rather spend the $1 million and keep these folks on board. According to the article I read, there are now 52 clerks in the district, family division and probate system. The plan is to reduce the number to 21 clerks.
There now are 60 deputy clerks. The plan is to reduce this number to 28. It isn’t just the reduction in these numbers that bothers me, it is that they will be centrally located and will no longer be local.

For an attorney to function effectively, he/she must have a good, personal relationship with the clerks and deputy clerks. They must be able to trust you and you must be able to trust them. It’s a two way street. When the relationship and trust is there, the clients benefit. My impression is that the judiciary is simply caving in to the legislature. We are supposed to have three co-equal branches of government. While I can understand being fiscally prudent, the question for the judiciary should be: how does the judiciary carry out its
constitutional duties. Part I, Article 35 of the New Hampshire Constitution states: “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.” In my opinion, our justice system works well when there is a local element to it. 

We want an impartial administration of justice. That’s more apt to happen if we know our clerks and deputy clerks. Knowing them makes them accountable to us and we accountable to them. This “other way” will
create faceless relationships and justice will be meted out more “cold blooded” than ever before.

The Public vs. Punxsutawney Phil

 Written by Brad Wilder, Esq.

According to Punxsutawney Phil, Spring will be coming early this year!!  I  wonder how it came to be that a civilized society could rely on a woodchuck for seasonal forecasting.  Do not we have the Farmer’s Almanac for that? 
  
Turns out Groundhog Day is rooted in German tradition and superstition.  The superstition provides that if a hibernating animal casts and sees his shadow on February 2nd winter can be expected to last another six weeks.  Conversely, if no shadow is seen, Spring will come early.  When early German settlers came to Pennsylvania, they continued the tradition and it has lasted ever since.  The first official Groundhog Day took place in Punxsutawney, Pennsylvania on February 2, 1886.    

This year Punxsutawney Phil did not see his shadow, which has only happened 16 times since 1886 according to existing records.  I had no idea a woodchuck could live as long as Punxsutawney Phil.  The woodchucks in my brother’s hayfield and those near my parents’ garden never seem to be around longer than a year or two. But I digress.
  
Of all years, this is not the year for Punxsutawney Phil to predict an early Spring and get it wrong.  Has not Phil seen the news and all the snow that is piling up?  It seems like it snows every third day around here.  We have had so much snow that I am getting mighty close at being able to build a snow staircase from ground level to my porch roof.  If this land beaver gets it wrong, we are all going to pay the price.  We might have to buy additional oil to heat our homes, spend more on snow plowing, and delay getting the lawn chairs and barbeque grill out of storage.  Given what is at stake, there has to be accountability.  If Phil botches it this year, perhaps a class action lawsuit with claims of misrepresentation, negligent infliction of emotional distress, false advertisement and fraud.  I bet global warming can somehow be tied to that little rodent, too.
  
Turns out, some on the internet are way ahead of me.  Chatter has been abuzz for a few years now about filing a lawsuit against ole’ Phil.  Problem is, there has not been enough momentum for a follow through.  This year might be different, especially if we do not see crocuses and daffodils peaking from the ground before March 20th.  I know I want to be on a golf course no later than March 30th.  And while on the subject of a woodchuck, I believe it is time we revisit the whole notion of a Groundhog Day.  Let us not forget that Punxsutawney Phil is of the same species as that gang in the Geico commercial that keeps chuckin’ our wood.  Hmm . . . we are being told that Spring will come early this year while our wood supply is being chucked.  Sounds like a conspiracy on the part of the oil industry.  I would be more comfortable placing trust in another hibernating animal for forecasting. Why not a Possum Day, Hedgehog Day or Marmot Day?

If I die without a Will

We often get the question: “If I die without a Will, does the State get my property?” The answer
to this question is: “I’ve got some good news and bad news. The good news is the State probably
won’t be taking your estate. The bad news is your estate might possibly not be handed down as
you would really like it to be. So read this, if you can:

In New Hampshire, if you die without a Will, the real estate and personal estate of every person who dies, assuming that person is survived by a spouse, will go to the spouse subject to the following limitations:

(a) If there are no surviving children or a surviving parent of the person now deceased, everything goes to the
spouse;

(b) If there are surviving children of the decedent all of whom are children of the surviving spouse also, and there are no other children of the surviving spouse who survive the decedent, the first $250,000, plus 1/2 of the balance;

(c) If there are no surviving children of the decedent but the decedent is survived by a parent or parents, the first $250,000, plus 3/4 of the balance of the intestate estate;

(d) If there are surviving children of the decedent all of whom are children of the surviving spouse also, and the surviving spouse has one or more surviving children who are not the children of the decedent, the first $150,000, plus 1/2 of the balance of the intestate estate; 

(e) If there are surviving children of the decedent one or more of whom are
not children of the surviving spouse, the first $100,000, plus 1/2 of the intestate estate. 

 

Here’s the “other part” of the equation. The part of the intestate estate not passing to the surviving
spouse, or the entire intestate estate if there is no surviving spouse, passes as follows: 

(a) To the children of the decedent equally if they are all of the same degree of kinship to the decedent, but
if of unequal degree, then those of more remote degree take by representation (if you had three
children, but one died leaving children of their own, then the grandchildren of that child will take
their parent’s share). 

(b) If there are no surviving children, to the decedent's parent or parents equally. 

(c) If there are no surviving children or parent, to the brothers and sisters and the children of each deceased brother or sister by representation; if there is no surviving brother or sister, the children of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree then those of more remote degree take by representation.
(d) If there are no surviving children, parent or children of a parent but the decedent is survived
by one or more grandparents, one half of the estate passes to the paternal grandparents if both
survive or to the surviving paternal grandparent if one paternal grandparent is deceased and the
other half passes to the maternal grandparents in the same manner; or if only one grandparent
survives, such grandparent shall receive the entire estate.

(e) If there are no surviving children, parent, children of a parent, or grandparent but there are children of the decedent's grandparent who survive, one half of the estate passes to the children of the paternal grandparent who are not beyond the fourth degree of kinship to the decedent and said children shall take equally if they
are all of the same degree of kinship to the decedent, but if of unequal degree those of more
remote degree take by representation, and the other half passes to the children of the maternal
grandparent who are not beyond the fourth degree of kinship and said children shall take equally
if they are all of the same degree of kinship to the decedent, but if of unequal degree those of
more remote degree take by representation; provided, however, that if there are no children of the
decedent's grandparent within the fourth degree of kinship to the decedent on either the paternal
or maternal side, the entire estate passes to the children on the other side who are not beyond the
fourth degree of kinship to the decedent and said children shall take equally if they are all of the
same degree of kinship to the decedent, but if of unequal degree those of more remote degree
take by representation.

(f) No portion of a decedent's intestate estate shall pass to any person who
is of the fifth or greater degree of kinship to the decedent. THEN AND ONLY THEN DOES IT
GO TOTHE STATE OF NEW HAMPSHIRE.

Expert Testimony!

Lawyers are trained to get ourselves quickly up to speed on any new issue brought through the door
by a client. We like to check and challenge assumptions by looking at facts and evidence. So we get pretty
bold at attacking just about any problem with logic and good, basic research.

Often, we need to be able to criticize and question our own scientific experts. There's a fun topic-of-the-week that provides an example -- the Supermoon. You'll see all sorts of commentary splashed around on the news and Internet about this phenomenon. It's simply where the moon comes closer to the Earth than it has for a couple of decades. So what? Is this a big ho-hum, or could there be some linkage to recent geological cataclysms. What's coming next week? How do you think about this problem? What if I told you that with just a few numbers and an Excel spreadsheet you can work out your own analysis quite quickly.

Here's what you do: Search on Google "apogee perigee distances" and jump to the second hit you see, titled "Lunar Perigee and Apogee Calculator." Copy-paste those dates and distances into Excel. Now you have the distances,but how do you figure the forces? Aha! Remember the apple! Try Googling "Newton gravity equation." Take the first hit -- Wikipedia "Newton's law of universal gravitation." You easily find that the force equals the gravity constant, G, times the mass of Earth in kilograms (EarthKG), times the mass of the Moon (MoonKG), with that product divided by the perigee distance squared. A couple more easy searches and clicks gets you the values for G and the masses of the Earth and Moon (in kilograms). Have your Earth-Moon distance in meters, and let Excel do its work. For example, =G*EarthKG*MoonKG/perigee^2" is what you enter into your spreadsheet cell to get the gravity force at perigee. Now, think just a little bit more about stressing the non-rigid Earth geological system with a slight perturbation in the form of a shifting pull-relaxation function over the time period of apogee-perigee. If you look only at perigee -- the moment of closest approach -- then you miss some of the pull-relaxation oscillation that can occur in this big wiggly system. Notice how superperigee comes right next to a super-apogee! You really want to be looking at the difference in gravitational force between the moments of adjacent apogee and perigee. My calculations show a 16% increase in this difference function during the current two-week period versus more normal periods. Adjusting down some for the moon being only 2/3 of tidal pull (the sun is about 1/3), this means you can estimate about 10-11% increase in the pull-relaxation forcing between the Earth and Moon during this Supermoon week versus a few months ago. In geology, unstable stressed fracture points may be momentarily balanced until some fairly minor perturbation triggers a slippage. And it may not take much of a percentage change in force to cause an event, or contribute to the cause of an event, in a stressed poised system. In my thinking, a 10-11% perturbation in tidal forcing is quite significant as an oscillatory perturbation upon a flexible, rebounding system such as the Earth’s crust. Remember, that tide pulls on rock, too.
Hmmm. Supermoon? But then, what do lawyers know?! That's why we hire experts to testify on the stand!

Is Mediation the Right Choice for You?

 Written by Attorney Renee Harvey

Mediation often allows clients to obtain outcomes they cannot get in court.  It is a flexible process. 
Therefore, mediation may be best defined by what it is not.

It is NOT LITIGATION.  Litigation is an adversarial process by which conflicting parties present and argue their positions to an individual, usually a judge.  A formal, adjudicatory process.   

It is NOT NEGOTIATION.  Negotiation is a process by which conflicting parties resolve matters by holding discussions, bartering and arriving at a mutual agreement; this process is often conducted through representatives.  Typically, an adversarial and competitive process.

It is NOT PSYCHOTHERAPY.  Psychotherapy is the treatment of mental and emotional disorders or maladjustments through the use of techniques designed to encourage communication of conflicts and insight into problems.  The goal of psychotherapy is internal psychological change or interpersonal behavioral change.

So, what exactly is Mediation then? 

MEDIATION IS a non-adversarial process in which a neutral third party acts to encourage and help disputing parties reach mutually acceptable decisions and agreements.  By resolving disputes in mediation, the parties determine for themselves what is important and what the outcome of the situation will be.  Therefore, MEDIATION IS your process – the decisions are yours –  it is the only forum in which you have complete control over the decision making and outcome. 


Contact us for more information  decatolaw@decatolaw.com

ANNULMENT OF CRIMINAL RECORDS

Written by Attorney William Whitten.
    “Out out damned record, out out I say.” Similar to a spot of blood on your hands, a criminal record can act as a stain on job applications, school enrollments and enlisting in the military. Unlike the spot of blood in Macbeth, it is possible to remove a wide variety of New Hampshire criminal records. Unfortunately, annulment of criminal records is not available in the Vermont courts, nor in the federal courts. In those courts a person must seek a pardon from either the state governor, or the President of the United States.

To date, Decato law office has not assisted anyone in seeking a pardon.
   
    Keep in mind that the statute does not permit the annulment of certain “violent” offenses. Examples are arson, some sexual offenses and murder. It is important to review the statute and the conviction to ensure that the offense is one that can be annulled.

    Once it is determined that the offense is eligible to be annulled an application listing the offense, or record of arrest, is filed with the court of record for the offense.  The County Attorney and local prosecutor may also review the petition and may object to the annulment being granted. The annulment is not mandatory, which is to say it is discretionary with the court. If there is no objection from the prosecuting authorities and the D.O.C. , the court is likely to grant the petition. If the annulment is granted, the State Police records department is notified to annul the record.

    “To annul or not to annul, that is the question,” or, why bother? By New Hampshire law an employer may ask: “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” Hopefully, a person can answer NO! In general, a NO answer to that question  enhances the chances of being hired for the job. It may also assist a person in enlisting in the military. Keep in mind that even if an offense is annulled, a court in sentencing a person for a subsequent offense can ask whether or not a defendant has had an offense annulled and take into consideration an offense that has been annulled. If the criminal offense is a felony the annulment will restore the right to carry a firearm and therefore the right to resume hunting.

    All in all, should there be a criminal offense, or even a record of arrest in your past, it is probably beneficial to consult with an attorney and determine whether or not you are eligible to apply for an annulment of that record.

   

BEWARE THE IDES OF MARCH!

Written by William Whitten, Esq.

This ancient warning came into prominence in the play Julius Caesar, by William Shakespeare. Julius Caesar was assassinated on March 15, 44 B.C. and ever since the phrase “beware the Ides of March”has been used to foretell an evil event.  Fortunately, in the Upper Valley, political assassinations are extraordinarily rare. However, there is an evil that lurks even in our safe haven of leaf season, huntin’ season, ski season and mud season. The evil are scams designed to separate you from your money and whatever else the scam artists can contrive.  No, I am not talking about tax filings due, although I am sure there are many who regard that day as an evil event.

Of course, all of like to think we are far too sophisticated and too smart to fall for any scam. Unfortunately, the scams often seem legitimate. For example, several years ago an elderly Vermont  woman, living on a small pension and social security, received a phone call from a “very nice and very polite young man.” He informed her that she had just won the Canadian Lottery and to collect her prize of several hundred thousand dollars all she had to do was send a certified check for $20,000.00, to cover taxes and handling. The lady went to her friendly local bank, took out a mortgage, which she could not afford, and got a certified bank check. The next day another very nice young man, showed up at her door, with a dozen roses, and assured her, that her “winnings” were on the way! It has been five years and the lady is still waiting for her “winnings.”  Sadly, she still believes she won the non-existent Canadian Lottery.

Another scam is the so-called “Nigerian letter.” In this one you receive an unsolicited letter, or more likely an email, saying “Dear Friend, or Dear Sir, untold riches await you.” Please help transfer $20 million dollars, or so, out of the country and into your account. A copy of one of these letters is attached. As ridiculous as it may sound, people have fallen for this ruse. One gentleman, after losing a lot of money, traveled to Nigeria to confront the perpetrator.   Unfortunately, he never returned.

The internet, that boon or mecca of information and instant worldwide communication, has led to many more scams. One  to be aware of is called “phishing.” In this scam you receive, what looks like an email from your bank, your PayPal account, or  credit card company and are asked to verify your private financial information, such as social security number, account number, date of birth, etc. It is extremely difficult to tell a legitimate email, from the “phish.” However, legitimate institutions will not ask for you to verify your information via email! If you do respond your account will be drained of cash very quickly.

Beware the scams that seek to separate you from your money. Keep in mind the words of the great showman, P.T. Barnum....”There is one born every minute”....don’t be that person.

Purchase and Sale Agreement

Writing a good purchase and sale agreement for the purchase and/or sale of real estate can be an

art form. A scrivener can write an agreement that is slanted to the seller, slanted to the buyer or

neutral. You want to be precise when describing the parties entering into the agreement. If you
get it wrong and someone doesn’t do what they were supposed to do, you want to make certain
you can proceed legally against them. You want to describe what you are purchasing with equal
precision. A “book and page” description is helpful. 

If personal property accompanies real property, you want the agreement to describe that. You have to set out the payment terms. Is the deal subject to your getting financing? What’s being paid? How is the price allocated amongst the things being purchased? What is the down payment? Who is going to hold the down
payment? What happens if someone reneges? What happens to the down payment? Does it get brought to closing? Is it forfeited if the deal doesn’t go through? Can someone get an injunction requiring a person to close if they refuse to do so. 

You need to describe a date, place and time for a closing. Are you going to get a Warranty Deed, a Quitclaim Deed, a Fiduciary Deed?  Which is it? Who is going to take title? Can you assign title to a trust or some other entity? What about the dreaded title search? What happens if you find a flaw in title? Who pays for it? Do you get to keep the deal alive while someone fixes the flaw? What if the place burns down between the time you sign the contract and the time you close? Who gets the insurance proceeds? Does the seller have to maintain insurance during the time between the signing of the contract and the closing? Do you want to be able to inspect the place before completing the purchase? What if you find termites after you sign the contract? What about hazardous waste or radon gas or a bad leachfield? What warranties do you want the seller to make? What warranties is the seller willing to make? What disclosures are there about the property? Is there a broker? Is someone getting a commission? Who pays for the title search, the preparation of the deed, closing costs and transfer taxes? Where do notices get sent? What law is going to govern the interpretation and validty of the agreement? 

These are but a few of the factors that go into the drafting of a good purchase and sale agreement. There are many others as well. Buying real estate can be tricky. That’s why there are realtors and that’s why there are lawyers.

Forever the optimist

I’ve been blogging “my little heart out lately” but had to take a day off to prepare for my New
Hamsphire Supreme Court argument which was delivered this afternoon. I don’t know exactly
how many appellate arguments I’ve made, but it is likely to be in the vicinity of 60 or thereabouts.

Most of my efforts have been with the New Hampshire Supreme Court, but I
probably have 5-10 in the Vermont Supreme Court. I’ve also appeared in the 1st Circuit Court of
Appeals (Boston) and the 2nd Circuit Court of Appeals (New York).

I’m writing to say how much I’ve enjoyed these experiences and how privileged and challenged I’ve felt delivering these arguments. When an attorney goes to an appellate court to argue, he/she is entering the arena of ideas. What is the current law? What should the law be? How would the decision impact the due administration of justice? What is fair and equitable? All of these things get thrown into the stew.

 In approaching today’s argument, I had a plan. I knew what I wanted to say and I knew the order in which I wanted to say it. But, as John Steinbeck once wrote: “The best laid schemes of mice and men go oft awry”. My plan was history immediately after I said: “May it please the Honorable Court, my name is Peter Decato. I represent “my client”, the petitioner below.”

I was questioned “heavily” by the justices today. That questioning alarmed me, but I am buoyed by what a bystander said: “The justices asked you all those questions today because they really want to rule in your favor and they want you to help them do that.”

Forever the optimist, I await the verdict.

Is society criminalizing adolescence?

Written by Brad W. Wilder, Esq.

A lawyer’s job is, among other things, to read the law and argue its application, or lack thereof, to a particular situation. Many times, it is easy to understand the objective the legislature was trying to accomplish in passing a particular law. Sometimes, however, the actual application of the law to a situation seems harsh and nonsensical. Consider the following:

A 17-year old boy begins dating a 15-year old girl. The parents of both teens are aware of the relationship. Each set of parents considers their child’s boyfriend/girlfriend responsible and an appropriate match. Neither set of parents considers the relationship out of the ordinary, compared to relationships of other similarly-aged teens. The boy and girl begin a sexual relationship. The girl’s parents eventually suspect that their daughter is having sex. Based on this concern, the girl’s parents introduce and educate their daughter about the use of birth control. When the boy turns 18, his girlfriend is a few months away from turning 16. The sexual relationship between the boy and girl continues.

The above scenario is not atypical to what we can assume is occurring for many high school teenagers. Yet in New Hampshire and Vermont, the consequences of such a relationship can be dire.

In New Hampshire, it is a class A misdemeanor for a person to engage in sexual penetration
(identified under the statute) with a person, other than the actor’s legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is four (4) years or less. A class A misdemeanor carries a potential penalty of up to a year in jail, a $2,000 fine, or both.

The offense rises to a class B felony if the person engages in sexual penetration (identified under the statute) with a person, other than his legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is four years or more. A class B felony carries a potential penalty of up to seven years in jail, a $4,000 fine, or both.


In Vermont, it is a crime for a person to engage in a sexual act with a child who is under the age of 16, except: i) where the persons are married to each other and the sexual act is consensual; or ii) where the person is less than 19 years old, the child is at least 15 years old, and the sexual act is consensual.

Many of us can persuasively argue that the teens of our society do not have the maturity or responsibility to be sexually active. Teens, after all, have just obtained their driver’s licenses, have meager means of supporting themselves, and are not even old enough to legally consume alcohol. But we would be naïve if we thought, for one moment, that adults are omnipotent to stop teens from engaging in sexual activity. No matter how hard responsible parents try to impress upon their children the dangers or potential repercussions associated with sexual activity during teenage years, parents simply cannot be with their children 24/7.
Sexual assaults should not, and cannot, be taken lightly. However, should the law criminalize adolescence? Does the law cast too broad a net when it comes to teenage relationships? Whether you believe in evolution or creationism, we cannot ignore human biology and physiology. Research suggests that boys reach their sexual peak in their late teens. If the peak is in the late teens, then the ascent to that peak is necessarily during the early and mid-teens. The sexual peak for girls is a bit later.

To be sure, many teenagers are unaware that their consensual sexual experimentation can land them, or their boyfriend/girlfriend, in jail. I have heard from teenagers, and even parents of teenagers, “So long as the sexual relationship is consensual, it is legal.” Wrong. A zealous prosecutor, focused on the letter of the law rather than the reality of a situation, can prosecute adolescents with disappointing success. The consequence of a prosecutor’s success is a criminal record for a boy/girl who barely has had time to flex his/her wings as an adult. With a criminal record to explain, efforts to acquire admittance into college or graduate school or acquiring the job of a lifetime become just that much harder to achieve.

It takes a village to raise a child, not a legislature, prosecutor or jail.

Decato Law Office
Tel No: 603-640-2020
E-mail - decatolaw@decatolaw.com

Sweet sap dripping in a bucket

RAISING THE BAR
A DECATO LAW OFFICE NEWSLETTER
Issued March, 2011 (this issue written by Justin Lancaster)
Published the 2nd week of each month
Issue #2011-3 -

The Tree of American Jurisprudence: Boring its knot!
With town meeting day arriving and back roads getting lumpy, sugaring’s not far behind. I expect this will be a good season, too, because snow's deep and warmth's a bit late coming. We haven't really had a good thaw yet, so the trees should be eager to run.
I always look forward to taking my kids down some muddy roads to discover sweet sap dripping in a bucket and find roaring, sticky steam in a sugarhouse. Maybe a good donut, too, with some cider. Places nearby that you can visit are listed at the bottom of this newsletter.
I’m Justin Lancaster, a new attorney at Decato Law Office. Actually, I’m almost an old attorney now, having practiced over a span of 33 years, starting many years ago as a law clerk in Norwich. I used to be local to the Upper Valley, before being gone 30 years to California, Washington, Colorado and Massachusetts; now returned.

Peter Decato and his great team asked me to come on board to help grow services for clients in environmental, immigration and intellectual property (IP) law. IP law is one of the oldest branches of American jurisprudence. And it's fun work, helping authors, inventors and business owners with their copyrights, patents and trademarks. Inventors come in with the darndest gadgets and ideas, like new-fangled ways to feed cats daily rations when you're gone to Disneyland for the week, or a new way to bend that shower curtain outward to give more room for doubling up! We talk with these inventors about applying for patents.
A patent gives you a brief period in which you can exclude other people from making or practicing your invention. Patents were created to reward the inventor for disclosing how something is made or works. This makes possible and encourages the next round of invention. A U.S. patent protects your invention for 20 years from the date you file your application. Patents issued in the U.S. before March 1994 have now expired, so these inventions are now in the public domain.

In New England, immigration and invention are intertwined branches at the heart of healthy change and economic growth. Like the maple leaf in green, gold and red, history turns colors in the law, the community and the environment. Innovations in maple sugaring technology were created in New England by immigrants from Europe in the 1700s and 1800s. Patents had already been a big deal in Europe for hundreds of years, being granted as early as the 1400s in Italy (for a barge-based pulley system to hoist marble blocks) and in England (for a way to make colored glass).

The first U.S. Patent Act was passed into law in 1790, just a year after the new U.S. Constitution granted Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". And the first U.S. Patent was issued in 1790 to Samuel Hopkins of Pittsford, VT, for a process to make pearl ash, an ingredient in soap manufacture. Hopkins' patent was signed by president George Washington and by Thomas Jefferson, as Secretary of State, who went on to become the first patent examiner of the U.S. Patent Office (and then President himself).
Of course, sugaring itself, like planting corn, wasn't invented by a European immigrant. In 1606, Marc Lescarbot described collection and 'distillation' of maple sap by the Micmac Indians of eastern Canada (Histoire de la Nouvelle France).
By the mid-1700s, the maple tree was already becoming a significant part of the New Hampshire economy, west of the Connecticut. History can quickly make a smudge of the Connecticut River as a state boundary, although not a geological one. I was born in the old Mary Hitchcock Hospital in Hanover, but I grew up in Barnard, VT. As a resident of Lebanon, now it's fun to remind folks that Barnard and Lebanon were both chartered as New Hampshire towns, in the same month of July, 1761. French immigrants were still entering from Quebec during this period, just as the British had floated in through Boston Harbor. But, the French immigrants coming south along the headwaters of the Merrimack River, past Profile Mt., would have observed fewer hardwoods than immigrants canoeing down the Connecticut to the west. This is because the White Mountains (including Washington and Jefferson) were formed only about 100 million years ago (as the Atlantic Ocean opened), whereas west of the Connecticut River you're looking at mountains, soils and ecology 100 million years older than the Atlantic Ocean itself.
Coming back to 1791, Washington and Jefferson had high hopes that a home-grown alternative to slave-produced cane sugar from the British Caribbean had been found. A Dutch company bought 23,000 acres of Vermont land aiming to hire local workers to make maple sugar to compete with cane from the West Indies. The project failed and Jefferson and Washington discussed plans to start "maple orchards" on their Virginia plantations. Most of those trees died or failed to thrive there, but Jefferson stayed a maple promoter.

The first patent on a sugaring evaporator was in 1858. About thirty years later, the G.H. Grimm Company, the major supplier of evaporators, buckets and spouts, moved from Hudson, Ohio, to Rutland, Vermont. Gustave Henry Grimm was an immigrant to the U.S. in the latter half of the 1800s, back before visas and green cards were required. He could neither speak, read nor write in English when he arrived, but within 15 years, in 1884, he had invented and patented the dropped flue evaporator which allowed for more efficient boiling of liquids such as maple sap.
When I was a kid, my Dad used to take me and my brothers and sister in early March up to the Cole farm on the North Road in Barnard, VT, to join in the sugaring. It was a beautiful sugarbush, a topnotch operation and, as many of you will have experienced, there's just nothing in the world like stepping into that steam at sugaring-off time, and tasting the most recent batch from the still warm grading jars. My parents' property had an old, run-down sugarhouse in the woods, and it was always my dream to bring it back to life.
With unquestionable judgment, I bought my first sugar rig when I was 14 years old. It was a Grimm, built in Rutland. I poured my entire savings from my lawn-mowing job into a small, classic Grimm Lightning evaporator, with one long dropped flu and two smaller flat pans. Mankind hadn't landed on the moon yet: these were still the good 'ole days of brace and bit and buckets. My brother and I bought a 1965 Ski-Doo to get around in the snow and we strapped plastic Gerry cans onto the stern to ferry sap to the sugarhouse. Not very energy efficient! All the neighbors joined in. I loved stoking that little Lightening rig. You'd throw open the arch doors and feel your legs burn as you shake down the coals and refill the firebox. That dropped flue evaporator patented by Grimm in the 1880s was my pride and joy. Opening and closing the special ports to transfer the thickening liquid from pan to pan was my carefully guarded supervisory role.


Today, Vermont is the biggest US maple syrup producer, at almost 0.9 million gallons in 2010, then New York and Maine at about 0.3 m gal, and NH and other states at a little over 100,000 gallons each. Of course, the province of Quebec, at over 6 million gallons annually, still owns about 75 percent of the world production. Although one thinks of maple syrup as a vital part of the VT economy even today, estimating total VT syrup sales at about $30 million annually still puts the entire VT maple industry below the revenues of either one of the Stowe or Killington ski resorts.
You might wonder why have we been reducing the rights of immigrants over the years? After all, immigrants and invention are still intertwined today, right here in Lebanon. For example, many inventors on the numerous patent applications submitted by Glycofi Corp. (which sold to Merck for big money) are recent immigrants. Glycofi strategically hired top-
level scientists from overseas and provided them a path to permanent residence and citizenship in the U.S. This has helped grow the Upper Valley economy, where the Merck acquisition allowed many of these same employees to buy new real estate and new cars, with their consequent real estate taxes pumping back into local schools.
Immigration law, intellectual property law and environmental law --- all of this is exactly what we do, also, now, at Decato Law Office! I look forward to meeting many of you in the months ahead.

Places you can visit to enjoy sugaring include:
-- Mount Cube Farm, Rte. 25-A in Orford, mtcubefarm.com, (603) 353-4111;
-- Little Stream Sugarworks, 17 Pleasant St. in West Lebanon, (603) 252-5219, open house on March 19&20, 10-2pm;
-- Maple Leaf Farm, 43 Dartmouth College Highway (Rte 10) in Lyme; and
-- Sugarbush Farm, 591 Sugarbush Farm Rd in Woodstock, sugarbushfarm.com, (802) 457-1757.

DECATO LAW OFFICE ● 367 ROUTE 120 ● UNIT A 1 ● LEBANON NH 03766 ● TEL NO 603-640-2020 ● www.decatolaw.com

Wage Garnishment

March 9, 2011
Let’s say you have a judgment against someone and you want to collect it by attaching their
wages. What are the obstacles? Does it make sense to do it? The first obstacle comes from
federal law. Federal law states that the maximum part of the aggregate disposable earnings of an individual for any workweek may not exceed 25% of their disposable earnings for that week or the amount by which their disposable earnings for that week exceeds 30 times the federal
minimum hourly wage, whichever is the smaller amount.

The term “disposable earnings” means the compensation paid after the deduction of items required by law. The second obstacle comes from New Hampshire law. At first glance, New Hampshire would seem to offer very little protection from garnishment: under New Hampshire law, any weekly earnings greater than 50 times the federal minimum wage can be garnished. (However, remember that federal law establishes that no more than 25% of disposable income is subject to garnishment.) But ----New Hampshire does not allow garnishment of wages earned after the creditor gets an order allowing garnishment. In other words, wages must have been earned, but not yet paid, at the time of the garnishment. New Hampshire therefore does not allow a continuing writ or order of garnishment to be put in place like other states do. So let’s try this out. The minimum wage is currently $7.25/hour. If you work 40 hours during the week, you have earned $290. Given the above discussion, you must make more than $290 before a wage garnishment is successful. Let’s say you are making $14.50/hour. For that 40 hours week, you are grossing $580 for the week. Assume that after withholding, social security and medicare, the net weekly wage is $490. These are the disposable wages for the week. Under federal law, the wage garnishment may not exceed 25% of $490 or $122.50. The second test includes the amount by which disposable income exceeds 30 times the federal minimum wage. 30 times the minimum wage is $217.50. Disposable income ($490) exceeds $217.50 by $272.50. The smaller amount is $122.50 and that’s the amount you can attach for that given week. In New Hampshire, you could attach $127.50, but federal law requires the attachment to be the lesser between federal law and state law. In New Hampshire, the creditor needs to keep going back to court to get a wage garnishment order (week after week). This is very costly and very inconvenient. Now you know why it isn’t done very often.

Bullying

I’ve been hearing/reading a lot lately about bullying in our schools. I’m certain bullying exists and I’m certain there are a lot of students who are abused by the bullying. Sadly, some of these students end up hurting themselves. Some even take their own lives. Despite the fact that bullying is a legitimate concern, those in charge of our schools have to exercise caution so they don’t trampel on a student’s first amendment rights.

Consider some of the remarks made in Vail v. Board of Ed. of Portsmouth, some 28 years ago (see 354 F.Supp. 592 (D.C.N.H. 1973)). “Free speech under the First Amendment is not absolute, and the extent of its application may properly take into consideration the age or maturity of those to whom it is addressed. As Justice Stewart stated in his concurring opinion in Tinker v. Des Moines School Dist., supra, ‘the First Amendment rights of children are not co-extensive with those of adults.’ 393 U.S. at page 515, 89 S.Ct. at p. 741. It is generally held that the constitutional right to free speech of public secondary school students may be modified or curtailed by school regulations ‘reasonably designed to adjust these rights to the needs of the school environment’.....But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.............. and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.
Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.” All pendulums swing and I’m fine with that. That said, my hope is that as we stand up to bullies, we don’t also stand up to the first amendment as well.

If your neighbor’s tree overhangs onto your property and damages your fence (or worse, falls on your roof), is your neighbor liable for the resulting damage? That was the issue in Pesaturo v. Kinne, decided by the New Hampshire Supreme Court on February 25, 2011. The Pesaturo case started as a small claim ($2,000.00 was requested as damages), but the case was transferred to the Superior Court because Ms. Kinne asked for a jury trial.

Once at the Superior Court, Ms. Kinne successfully moved to dismiss Ms. Pesaturo’s claim for damages contending, amongst other things, that the doctrine of ferae naturae barred recovery. The Supreme Court reversed because the doctrine of ferae naturae applies to acts of wild animals not “wild trees”. In the end, what seemed as a fairly insignificant case on the surface, has become a fairly significant case on its face because in Pesaturo, the New Hampshire Supreme Court took the time to clarify the rules relating to premises liability.

The court held that under New Hampshire law, for a duty to exist on the part of a landowner, it must be foreseeable that an injury might occur as a result of the landowner’s actions or inactions. From there, the court went on to hold that a landowner should be responsible for a decayed or defective tree that he permits to harm another because it would be an inherent injustice to allow a landowner to escape all liability for serious damage to his neighbors merely by allowing nature to take its course. The Pesaturo case is just another example of a small claim contributing to a State’s jurisprudence.