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Law Rules

How we resolve our disputes

Monday
Jun222009

Happy Father's Day

What does Father’s Day have to do with dispute resolution?  All too often, the issue of paternity has become a question to be resolved by the courts.  The courts (quite correctly, I believe) seem to favor finality in this decision-making process.  For example, in a case where a man filed a formal declaration of paternity shortly following the birth of a child and then, years later in a child support proceeding with the child’s mother, requested a blood test which showed the child was not his, a court held that the initial declaration of paternity was binding.  Daniel T.W. v. Joni K.W., 762 N.W.2d 444, 2009 WI App 13 (Wis. App., 2008).  In other words, once a father, always a father (unless superceded by an adoption or termination of parental rights).   Could this situation have been resolved by alternate dispute resolution proceedings (out of court)?  I doubt it.  I don’t think the issue of paternity should be negotiable.  It might be preferable, in most situations, for the biological father to be the legal father.  But once the legal relationship is established, no matter how it is established, the state has an interest in enforcing that relationship so that the child does not become a ward of the state.  That interest can be enforced only in court.  It can’t and shouldn’t be negotiated or mediated.  Remember, King Solomon did not really cut the baby in half.  He only threatened to do so.  Parenthood is and always has been an all or nothing proposition.

The decision to become a legal father should be taken as seriously as the decision to become a biological father.   Far too many fathers take neither decision seriously and try to escape their responsibilities.  On this Father’s Day, I wish only that more men could see the benefits and enjoy the relationship, regardless of the costs.

Tuesday
Jun092009

Rites or rights of the season

It’s June — time for graduations.  Let’s go down our checklist:

  • take final exams and pass all courses
  • get cap and gown
  • file lawsuit
  • go to church

Hmmm … I don’t remember those last two items being on my checklist when I graduated from high school or college.  But they are today.  A federal judge in Milwaukee recently refused to enjoin a public school district from holding its graduation ceremonies in a church.  The plaintiffs claimed that holding the graduation in the church violated the constitutional doctrine of separation of church and state.  The school district said it could not hold the ceremonies at its schools due to lack of space and the church was the most practical and convenient alternative.  The judge agreed with the school district, at least to the point of refusing to issue a preliminary injunction.  The lawsuit is still pending and a trial date will be set to determine whether the district violated anyone’s constitutional rights.  The plaintiffs have said they will appeal the judge’s decision on the preliminary injunction.  The Milwaukee Journal-Sentinel published an editorial suggesting it would be best to drop the appeal and the lawsuit. 

In the meantime, the school district is building larger auditoriums at its high schools (after 6 to 8 years of using church facilities) and will hold graduation ceremonies at the schools next year.  So much for separation of this church and state.  Now, can we separate the schools from the courts?  

If other school districts make their graduates go to church in order to participate in graduation ceremonies, I suspect the courts will once again be called upon to interpret that pesky 1st Amendment.  What does “establishment of a religion” really mean?  For those who would suggest that this is much ado about nothing, I would ask you to substitute the word mosque, Shinto shrine, Buddhist or Hindu temple, or synagogue for the word church in this story, or in my checklist.  Is it still about nothing?

Monday
Jun082009

Litigate? Arbitrate? Pick one & stick with it!

Jerry Seinfeld once commented on Oprah Winfrey’s fluctuating weight by saying “She’s fat, she’s thin, she’s fat again. Why doesn’t she pick one weight and stick with it?”  That seems to be the approach the 5th Circuit Court of Appeals took in Nicholas v. KBR Inc, No. 08-20140 (5th. Cir. 4/15/2009). 

After her husband died in 2006 as a result of mesothelioma, a widow discovered that her husband’s employer had promised to continue to pay for her husband’s life insurance policy after he could no longer work, but failed to do so.  The widow sued the employer and the parties conducted some discovery.   After the court conducted a scheduling conference, the widow discovered that the employer’s agreement contained an arbitration provision and she filed a motion to compel arbitration.  The employer argued that the widow waived her right to arbtrate by filing the lawsuit.  Also, the employer claimed it had been prejudiced by having to litigate the matter for more than 10 months.  The district court agreed and denied the motion.  On appeal, the 5th Circuit also agreed and remanded for further proceedings in the district court.  Apparently, we are legally required to know not only what is in contracts that we sign, but also what is in contracts that our spouses sign. 

Sunday
May312009

To mediate or to arbitrate?

A few weeks ago, I served as the arbitrator for the Better Business Bureau’s Autoline program, which helps to resolve Lemon Law claims.  Both parties  (the consumer and the manufacturer’s representative) arrived with appropriate documents and exhibits, gave relevant testimony, and made coherent arguments.  It was an interesting case, but ultimately I had to rule for one party or the other.  Finding that the alleged defect did not materially affect the safety, value or operation of the vehicle, I ruled for the manufacturer.  So the manufacturer won and the consumer lost, right?  Not really.  The manufacturer had offered no compensation, services or replacement, so the consumer had nothing to lose.  On the other hand, the consumer is now unlikely to purchase a car manufactured by this automaker ever again.  Seems like a Pyrrhic victory to me.  If the parties had been amenable to mediation, a win-win situation might have been found.  The BBB does offer such services.  Too bad the parties went for the win-lose alternative.

Thursday
May282009

To settle or not to settle?

The story about the woman who died in a King’s County (New York City) Hospital psychiatric emergency room after waiting a day for service or treatment has raised some interesting questions about both our health care system and our legal system.  The woman’s family settled their wrongful death case with the hospital for $2 million yesterday.  Yet, more than half of the people voting in response to an online story about the case said the family shouldn’t have settled for that amount.  The story mentioned that the family still wanted a criminal investigation to proceed, apparently because there was some evidence that some hospital personnel falsified some records of the incident, which had been recorded on a security video camera.  The City accepted full responsibility for the incident, and the hospital fired several people and made changes to reduce waiting times.  My question is this: if the parties to the civil lawsuit are satisfied with the settlement, and there are other avenues available for addressing potential criminal issues, who cares whether anyone else thinks the settlement is not enough (or too much)?  The civil justice system succeeded in resolving the dispute to the apparent satisfaction of the parties.  Isn’t that what it is for?  This case does raise legitimate issues about how we place a monetary value on a life.  It also raises questions about how our healthcare system can and should deal with pyschiatric patients.  But those are issues for another forum.  As long as neglect and intentionally wrongful conduct can be addressed in the courts, let’s get on with improving our healthcare system by other means.