Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

As the last days of December wind down, it is traditional to look back on the past year’s triumphs and tribulations.

Fortunately, Law.com has compiled The Top 'Top-10' Lists of 2009, including Law Central’s list of the weirdest cases of 2009. The case of the man who was prosecuted for dialing 911 when his local Burger King ran out of lemonade proves that sometimes justice really is served (no pun intended).

Thanks to the Blog Herald for giving us top legal issues to look forward to in the coming year.

Closer to home, our own town of Ridgefield enjoyed an interesting year. Several real estate transactions occurred on Main Street, with tenants moving in, moving out, or just moving across the street. First Selectman Rudy Marconi declared his consideration of a run for governor.

We wish all of our neighbors, friends and clients a happy, healthy and prosperous New Year.

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According to Workforce Management, on December 19, Congress approved -- and the President signed -- a military spending bill that includes the extension of federal COBRA health insurance premium subsidies for unemployed workers.

The article states that the legislation will provide another six months of subsidized coverage for beneficiaries whose nine-month COBRA 65% premium subsidy has run out. It also gives beneficiaries whose subsidy expired and who didn’t pay the full premium the opportunity to receive retroactive coverage. The legislation also requires employers to notify current and future COBRA beneficiaries of the new 15-month premium subsidy.

COBRA is simple in concept but complex in implementation. More information can be found on the Department of Labor website, and of course, you can consult a professional.

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We often tell clients that going through litigation is like the movie Rocky: the parties will batter each other emotionally and financially until the last one standing wins. This analogy draws on popular culture and helps to manage clients’ expectations, while promoting the advantages of reasonable negotiated settlements. It also makes a serious point with a touch of humor.

Little did I know that even more nuanced life lessons are to be found in one of the sequels, Rocky III.

In this installment, Rocky has lost the championship and is trained by his former arch-opponent for a comeback.

But, there’s more to it. Rocky, in fact, has to learn new skills. Specifically, he has to be quicker, more agile, and learn to move rhythmically. He also has to package his new skills into a whole new fight strategy. But first, he has to pick himself up emotionally.

I think this is a good metaphor for surviving the recession. Businesses that may have lost their “championship” standing may need to pick themselves up, learn new skills and package them into a whole new business strategy.

Actually, learning new skills should be part of a continuous process, and business strategies should be continually reevaluated and refreshed. Then, the business would be well-positioned to survive adversity -- even a really bad recession. Personally, we have always been prepared to shift the focus of our practice within appropriate areas of our expertise and to selectively implement new technologies to deliver services more effectively.

So, I learned about litigation from Rocky and about management from Rocky III.

To think that I could have saved all that time going to business school and law school if I had only paid more attention to Rocky.

image courtesy allposters.com

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As children, we’re taught that if you do something wrong, you’re supposed to apologize. For some people, though, it’s not just a suggestion, it’s the law. According to a recent Law.com post, Ontario recently became the fourth Canadian province to enact “apology legislation.” Law.com also reports that most Australian states and more than 30 states in our own country have similar legislation.

The Act provides that an apology, made by or on behalf of a person, does not constitute an admission of fault or liability by the person and is not admissible in any civil or administrative proceeding.

That being said, I still wouldn't advise a client to apologize before a case has been tried or resolved (even if there were such an act in NY and CT -- and I haven’t checked to see if there is). I would not take the suggestion in the Law.com post to use the apology as a dispute resolution tool - - at least not while a trial or hearing may be in the parties’ future.

My reason is related to the old trial lawyer’s cliché: you can’t unring a bell. I was watching an old Jimmy Stewart movie, “Anatomy of a Murder.”  Stewart plays the defense lawyer. Over and over he says something he shouldn’t, and the judge tells the jury to disregard it. Ben Gazzara’s character, the accused, asks him, “Can they really disregard it?” And the Stewart character casually says, “Of course not.”

My point is, once you’ve apologized and it becomes public, act or no act, how can anyone disregard the apology, or not "take it into account"? Judges and juries are human.

We don’t practice in medical malpractice or personal injury where, according to Law.com, there is a lot of interest in this "tool." There is, however, one aspect of this issue that is of some interest to me: should an apology be part of a settlement (after the parties have given each other releases from liability)? How often I hear, “It’s not the money, it’s the principle.” If that’s the case, I would ask, will you settle if I can get you only an apology and no money?

That situation, to me, is different from one in which the apology might precede a trial or hearing. Of course, it would take some negotiating skill to suggest an apology can be part of a settlement without admitting an apology is in order.

The growth of this legislation shows its increasing popularity. However, in my own experience, I don’t think such an act can be very effective.

Let us know what you think.

(not a legal document)

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Recently, the Wall Street Journal Law Blog, applying yet another sports and law analogy, asked: Why aren’t instant replays reviewed de novo? That is, why is “conclusive” or “indisputable” proof required to reverse a call on the field? Why not take a fresh new look at the play when reviewing video?

I’m probably in a very small minority, but I think the question answers itself: because sports plays need to be called 100% impartially, not necessarily 100% accurately. The officials on the field are human. Absent bias (say, towards the home team) or outright corruption, a call should not be reversed unless the video evidence is “conclusive.”

So, to some extent, I take issue with the analogy applied in the WSJ article. However, the post is actually quite educational and presents the subject matter in a clever way.  I’d also consider it helpful, since the role of the appellate courts is not well-understood among non-lawyers.

I just wouldn’t take any similarity between the courts and football - - or any sport - - too far.

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As we have mentioned before, under current law, the federal estate tax is scheduled to temporarily disappear next year before returning in 2011 at an even higher 55 percent rate. During the year without an estate tax, all estates would be subject to capital gains taxes that they now avoid.

The House approached a vote Thursday on permanently extending a 45 percent inheritance tax on estates larger than $3.5 million, canceling a one-year repeal of the tax set to begin next month.

According to an article in the Hartford Business Journal, under the House bill, estates smaller than $3.5 million would continue to be exempt from the tax, and married couples, with a little estate planning, could exempt a total of $7 million.

Under current law, the estate tax would return in 2011 with a $1 million exemption and top rate of 55 percent, unless Congress acts.

We will continue to keep you updated. 

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The Supreme Court has not been historically sympathetic to age discrimination cases. A recent New York Times editorial post stated that Congress is considering overturning a court ruling about age discrimination (Gross v. FBI Financial Services, Inc.) The ruling said that older workers must show that age was the decisive factor in their firing — not merely a contributing factor.

In 1967 Congress passed the Age Discrimination in Employment Act (ADEA), but the courts have made age discrimination suits very difficult. According to the Times piece, in 1993, in one of its most damaging rulings, the Court decided that if employers fire workers whose pension costs or salaries are high, they are not discriminating — even if the overwhelming number of people fired are older workers.

In our practice, we often see age discrimination that is subtle, with other factors involved. In those cases, we help negotiate a severance package and advise the client to move on.

What’s surprising is that there are still instances where it’s blatant and systemic (as pointed out by the Times article). Clients with the emotional -- and financial --resources may then choose to take a stand. But the burden of proof is on the plaintiff. The Supreme Court’s ruling in Gross v. FBI Financial Services (the case that Congress is thinking about reversing) said when there are mixed motives, the plaintiff has to prove age was the “but for” reason. This doesn’t work in terms of fairness and is inconsistent with the way other forms of discrimination are treated.

Interestingly, one blog reporting on this case rightly points out that the Supreme Court opinion states that Congress neglected to provide for a “mixed motive” analysis in age discrimination cases. On one level, as citizens, we might find it annoying that Congress and the Supreme Court are engaged in finger-pointing on an important issue. On another level, it shows that if Congress does act to reverse the rule in this case, it is not necessarily repudiating the Supreme Court but accepting the message that the law requires correction.

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