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March 2015 Archives

Parenting Plans for Special Needs Children

Two renowned psychologists who work with children in the context of divorce and separation, Daniel B. Pickar, PhD, ABPP and Robert L. Kaufman, PhD, ABPP, presented a seminar at the 50th Anniversary Conference of the Association of Family and Conciliation Courts in Los Angeles entitled "Parenting Plan Considerations for Special Needs Children."

Top 10 Reasons to Choose International Arbitration in Dispute Resolution Clauses

In the negotiation of complex cross-border commercial contracts, the parties too often pay scant attention to the terms of dispute resolution clauses.  The clear advantages of choosing international arbitration over court forums can be overlooked.

Supreme Judicial Court: 'Try Title' Actions Challenging Foreclosure Are Only Available After Foreclosure Occurs

In a decision handed down earlier this month, the Massachusetts Supreme Judicial Court (the "SJC") has resolved a split among Land Court justices regarding the availability of a "try title" action brought against a mortgagee prior to foreclosure.

Changes to Mass. R. Civ. P. 45

The Supreme Judicial Court recently amended Rule 45 of the Massachusetts Rules of Civil Procedure, effective as of April 1, 2015.  The most significant change in the amended Rule 45 is the allowance of "documents only" subpoenas to non-parties.  Previously, if only documents were sought from a non-party, Massachusetts practice involved serving a deposition subpoena that agreed to "waive the appearance" of the non-party at the deposition if the documents were produced.  Consistent with the federal practice, now Massachusetts practitioners can serve a "documents only" subpoena when only documents are needed.  The last line of Rule 45(b) makes clear that "[a] person commanded to produce documents, electronically stored information, or tangible things, or to permit inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial." 

Supreme Judicial Court: 'Try Title' Actions Challenging Foreclosure Are Only Available After Foreclosure Occurs

In a decision handed down earlier this month, the Massachusetts Supreme Judicial Court (the "SJC") has resolved a split among Land Court justices regarding the availability of a "try title" action brought against a mortgagee prior to foreclosure.

What Is The "Value" Of Real Property?

In litigation, such as contract disputes, construction disputes and divorces, determining the value of real property  (like the value of a marital home, for example) may become a key issue in the case.  While a seemingly simple concept, the term "value" may have several different meanings depending upon the context in which its used in litigation, and understanding the  various methods of determining "value" of real property is crucial.

New Study Provides Important Empirical Data on Arbitration

The private nature of arbitration means that there is typically less information available-- to lawyers, their clients, and the public -- about the practices and preferences of arbitrators.  A recently published study on arbitration, described by authors Thomas J. Stipanowich and Zachary P. Ulrich as "a wide-ranging, thoroughgoing empirical survey of practices and perspectives among experienced commercial arbitrators" sheds light on current trends in domestic and international arbitration.   

Supreme Judicial Court Decides Forced Withdrawals From ATM Satisfy Criminal Statute's Intent Requirement

An act of theft committed by forcing the victim to withdraw money from an Automated Teller Machine ("ATM") is sufficient to trigger conviction under a Massachusetts statute prohibiting "confining to commit a felony" (see G.L. c. 265, § 21), the Supreme Judicial Court (the "SJC") decided last month.

Employers Beware: A Weak Discrimination Complaint Too Often Leads To A Strong Retaliation Claim

There are many anti-discrimination statutes aimed at protecting employees, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964 under federal law and the anti-discrimination provisions of Chapter 151B of the Massachusetts General Laws to name a few.  While understanding the nuances and the interplay between federal and state laws can pose challenges, the intention behind these laws is something that all well-meaning employers support.  Nevertheless, situations can arise when even the most well-meaning employer may find compliance with the law and the behavior required to avoid a lawsuit both counterintuitive and difficult.  One particularly dangerous area for employers can be found in the anti-retaliation language contained in many employment discrimination statutes.  This is because employers too often react negatively to the assertion of a claim and consequently turn a weak discrimination case into a strong retaliation claim.

Does a Parent Have a Right to Counsel in Proceedings Where a Third Party Seeks to be Appointed as Guardian?

The Supreme Judicial Court recently ruled, in a much-anticipated decision, that a parent has a right to court-appointed counsel when a third party is petitioning for permanent guardianship over his or her child. The decision in the case, the Guardianship of V.V., is of particular note because the SJC ruled on the underlying issue - whether a parent has a right to counsel in guardianship cases - despite the fact that the decision affecting the parties was moot, as the mother has succeeded in removal of the guardianship. It is highly unusual for courts to rule on cases that are moot. However, the court stated that, due to the importance of the issue, it was incumbent upon the court to exercise its discretion and provide an answer to the central question.

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