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Spanish driver sues dead crash cyclist for damage

Spanish driver sues dead crash cyclist for damage
Fri Jan 25, 9:02 AM ET (Reuters)

A Spanish driver who collided with a cyclist is suing the dead youth’s family 20,000 euros (14,800 pounds) for the damage the impact of his body did to his luxury car, a Spanish newspaper reported on Friday.

Businessman Tomas Delgado says 17-year-old Enaitz Iriondo caused 14,000 euros (10,400 pounds) of damage to his Audi A8 in the fatal 2004 crash in La Rioja region, the El Pais newspaper reported.

Delgado, who has faced no criminal charges for the incident, wants a further 6,000 euros to cover the cost of hiring another vehicle while his car was being repaired, El Pais said.

The youth had been cycling alone at night without reflective clothing or a helmet, according to a police report cited by El Pais.

His family won 33,000 euros compensation from Delgado’s insurance company after the firm acknowledged he had been driving at excessive speed and this could have contributed to the incident, El Pais reported.

“I’m also a victim in all of this, you can’t fix the lad’s problems, but you can fix mine,” Delgado told the newspaper, ahead of a January 30 legal decision on his suit.

The family said they had previously pitied Delgado for the guilt he must feel at killing their son but were now disgusted that his greatest concern appeared to be money.

“This was the final straw, a kick in the teeth,” the youth’s mother Rosa Trinidad told El Pais.

Another Reason to Mediate Your Dispute or Divorce

This week, a committee of the New Jersey Supreme Court issued a report recommending that the court’s records be made accessible to the public through the internet. The report’s executive summary reads in part:

In drafting the proposed rule, the Committee accepted as a bedrock principle the need to preserve New Jersey’s strong tradition favoring public access. Accordingly, the rule begins with the presumption that all court and administrative records are available for inspection unless otherwise exempted. This approach is a significant departure from the current version of Rule 1:38, which narrowly defines court records as only those that are “required by statute or rule to be made, maintained, or kept on file” in the course of the court’s official business. The current version of Rule 1:38 does not specifically address the broad category of administrative records. The proposed rule is intended to replace the common law “balancing of interests” test with an absolute right of access to all non-exempt court and administrative records.

What does this mean for you? In practical terms, it means that almost anything that is filed with the court (motions, pleadings, hearing records, admissions at trial) will be made public via the internet with these details and exceptions:

  • Certain personal identification numbers (“personal identifiers”) should be treated as confidential by the Judiciary, and litigants should be required to omit them from any documents submitted to the court. Those confidential personal identifiers are Social Security, driver’s license, vehicle plate, insurance policy, financial account, and credit card numbers. The burden of keeping this information out of the court’s records falls on the filing party.
  • Documents and reports admitted into evidence or attached to a motion or pleading, including medical, psychiatric, and psychological reports, tax returns, and financial records and reports, are subject to public access.
  • Family Division records (i.e divorce cases) should be viewed differently from records in other court divisions because Family Division matters involve children whose confidentiality should be protected. Thus, reports, such as medical and psychological reports in dissolution and non-dissolution matters dealing with custody or visitation of children should not be disclosed to the public. Even evaluative reports of parents in these cases should be treated as confidential given the potential harm to the child. The Family Practice Committee should be asked to consider whether other documents in dissolution and non-dissolution matters that involve children should also be made confidential.
  • The committee recommended making the Family Part Case Information Statement filings and attachements confidential.
  • Civil judgments posted on the Internet should include full home address and date of birth for purposes of identification.
  • The definition of court record in the revised public access rule should state that surrogates’ judicial records are court records subject to public access. The surrogate handles administrative matters on such items for the court as probate and wills, guardianship, and adoptions.
  • The public access rule should allow parties and interested persons to request that documents improperly submitted to the court be removed from the court file.
  • The Judiciary should educate the public and the bar about the presumptively open nature of court records. Every person who comes into contact with the courts should be put on notice that information provided to the Judiciary may be disclosed upon request to others, or on the Internet.
  • Also specifically excluded:
    • Notes, memoranda, draft opinions, or other working papers maintained in any form by or for the use of a justice, judge, or Judiciary staff member in the course of his or her official duties.
    • Records of consultative, advisory, and deliberative discussions pertaining to the rendering of decisions or the management of cases.
    • Records pertaining to mediation sessions and complementary dispute resolution proceedings pursuant to Rule 1:40-4(d) and Rule 7:8-1, but not the fact that mediation has occurred.
    • Guardian ad litem records. (A guardian ad litem is appointed by the court to represent the interests of a person with respect to a single action in litigation.)
    • Family Division records pertaining to investigations and reports made for a court or pertaining to persons either on probation or ordered to pay child support.
    • Records relating to child victims of sexual abuse.
    • Child custody evaluations and reports.

Most of these records are currently available to the public, but to access them now, you have to go down to the courthouse and request them. If you want copies, there is a schedule of costs ranging from $0.75 per page to $0.25 per page depending on how much you’re copying. Access to these records will probably be free to the public on the web.

The report is quite detailed and covers a lot more than I have in this space. The court will be taking comments on the proposed rule through March 24, 2008.

Mediation is a confidential process protected both by court rule and state statue (the NJ Uniform Mediation Act). By mediating a divorce, family or commercial dispute or other conflicts you can keep your personal information out of public view. To find out more about mediation, please feel free to contact me.

Costs of Divorce

As I mentioned in my previous post about collaborative divorce, the Boston Law Collaborative performed a study of 199 of their recent divorce cases. Mediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation. Obviously, the cost of any single divorce is dependent on the specific circumstances and complexity of that divorce. But this gives a good approximation of the relative costs between the various divorce processes.

If you should have any questions about divorce or mediation, please feel free to contact me at 732-963-2299 or through the contact page at my website.

What is Collaborative Divorce?

Collaborative Divorce is a newer process for obtaining a divorce, which is a middle ground between mediation and litigation.  In collaborative divorce, the parties and the attorneys agree to make the outcome fair to all.  The collaborative attorneys perform most if not all of the negotiations.

The one main twist that seperates this from a litigated divorce is that the lawyers agree in advance that if the parties want to litigate the divorce (in the case they cannot come to an agreement), these attorneys will step aside and the process must start over again with new attorneys — with all the costs inherent in that.  That’s the “incentive” to reach an agreement.

What are the benefits and disadvantages of this divorce process?  It is less costly than a litigated divorce, but more expensive than a mediated divorce.  It should have less emotional strains than a litigated divorce since it is supposed to be a non-adversarial process.  It may not provide for the catharsis that a mediated divorce can provide.  The end divorce is the same as one would get in any of the processes.

Why would someone want to use collaborative divorce over a mediated one? There are two primary reasons. First, if a spouse is uncomfortable sitting in the same room as their soon to be ex. Second, there are many people who do not like to negotiate. These people would benefit from collaborative divorce since the attorneys are doing the direct negotiations (at a higher expense, though).

The AP published a nice article about divorce last month, which you can read in depth here. I will be focusing on the costs study referenced in the article in my next posting.

What do you look for in hiring a mediator?

Courtesy of my west coast colleague Vicky Pinchon, the Toronto (Ontario, Canada) Star newspaper had an article about a mediator who caused far more harm than good. The article reads in part:

A Toronto-area family’s problems with the mediator they’d hired to work on their daughter’s messy divorce reached a nadir when her 6-year-old son came home with a bizarre story.

During a supervised visit with his father in a restaurant, the mediator told the waitress she was the little boy’s “mommy.”

“He was very distressed, very, because he didn’t know what was going on,” said a female family member, asking to remain anonymous because their case is still before the courts.

The family was aghast but initially didn’t complain. They were afraid to fire the mediator, whom they paid more than $15,000, because they feared a negative report in family court.

“Everybody told us, `Don’t make the mediator mad’,” she said.

When they finally did try to file a complaint they found they had nowhere to turn: mediators aren’t regulated in Ontario.

Instead, anybody can hang a shingle and plunge into a highly sensitive area of working with divorcing couples and their children at a time when most are financially and emotionally vulnerable.

The article further talks about lack of licensing and supervision of mediators.

It is equally true in the U.S. that anyone can hang a shingle and call themselves a mediator. There is no licensing or certification required to be a mediator — a point I think needs to be rectified by the States. Until that happens (and there are no widespread movements underfoot), how do you know who is a good mediator to hire?

You can find more details on my website, but some points to consider:

  • Has the mediator received formal training and did that training include actual mediations or co-mediation?
  • Does the mediator have training in the area you’re looking to resolve your dispute (divorce vs. elder vs. commercial)?
  • What style of mediation does the mediator use? (If your mediator can’t answer this question, he/she has no formal training.)
  • Is mediation the primary business of the mediator, or is this a side business?
  • Does the mediator get continuing education in mediation (not only in general law, therapy or other primary area of practice)?
  • Does the mediator belong to and are they active in the local/state professional mediator groups? (In NJ, those would be NJAPM and the ACR.)

What about being on rosters of various sorts (courts, EEOC, AAA, etc.)? To be eligible for most rosters, you generally must meet a checklist of training and experience. You are usually unsupervised and no one determines if you’re a “good” mediator before being admitted to the list or even after you’re admitted.

One other point to note: licensing does not guarantee competence or ethical behavior. Lawyers, doctors and accountants are all licensed professionals. You can view all the NJ attorneys who make it onto the ineligible list on the NJ Courts website. Doctors lose their licenses for malpractice and unethical behavior. CPA’s are disciplined for improper behavior. (Mediators can be sued for malpractice.)

If you have any further questions about my qualifications or qualifications of mediators in general, feel free to contact me.

Microsoft’s Bill Gates’ Last Day

This has absolutely nothing to do with mediation or ADR, but this Microsoft produced video shown at this year’s CES parodying Bill Gates’ last day on the job is hysterical….

And you think your child support payments are too high?

From the Atlanta Constitution Journal

Lawyer defends his monthly $14K child payments

The Atlanta Journal-Constitution
Published on: 01/14/08

Renowned trial lawyer Willie Gary had a very personal case before the Georgia Supreme Court Monday.

And for a publicity savvy lawyer, it was clear that this was one case he wanted to avoid scrutiny because it dealt with back child support and a legal blunder — his own.

“I’m trying not to try this case in the press,” he said, and then added with a rueful smile, ” because it’s mine.”

Gary, who is married with four adult children, fathered twins with Atlanta-resident Diana Gowins during what is described as a brief relationship when Gowins was living in the lawyer’s home state of Florida.

“She was in Florida training for the 2000 Olympics and she was looking for him to sponsor her,” said Robert Moss, Gowins’ lawyer.

The twins were born November of that year.

The two reached an out-of-court agreement that states he is to pay child support of $14,000 a month per child but Gary contends that when he signed the document he only meant to agree to $14,000 a month total.

That legal misstep has sparked nearly four years of trial court rulings, contempt charges, and appellate rulings.

Gowins contends $28,000 a month is pocket change for a guy who according to court papers pays $150,000 to maintain his personal Boeing 737 and estimated his personal fortune to be $60 million in 2003.

But Gary argues in court papers that Gowins “had misused, misappropriated and wasted the money he had given her.”

He said he paid $500,000 for support payments, college tuition funds, a new house, and child medical payments by 2005 but at that time only $25 remained in the bank for his children.

Gary contends that Gowins agreed the payment should only be $14,000 monthly, plus payments for specific items from the signing of their agreement in 2002 until Gowins filed a paternity suit to enforce the agreement’s actual language in 2004.

In 2005, Fulton County Superior Court Judge Cynthia Wright granted Gowins $28,000 in monthly child support.

So far, Gary has lost most of the legal fights with either the trial judge or appellate judges siding with Gowins.

Right now, the high court has to decide whether Wright can force Gary to pay nearly $600,000 in back payments Gowins contends he owes her.

As most deadbeat dads know, a judge can jail them if they don’t pay child support. The Gary case is complicated by the fact that while Wright has previously ruled that Gary has to pay the $28,000 a month, she said she could not jail him for nonpayments before her 2005 order. The Georgia Court of Appeals, however, disagreed and ruled Wright had that power.

Gary appealed to the Supreme Court. Gowins appeared confident Monday that the high court would decide in her favor.

“He is doing what he wants to do, not what the courts have asked him to do,” she said of her short-time lover.

Gary won a brief victory in 2006 when Wright, apparently fed up with Gowins’ spending, reduced the child support payments to $5,000 a month, plus $2500 a month for private school. The judge had previously chastised Gowins about her spending and suggested she get a job. Gowins told the court she had the right to be a stay-at-home mom.

But the Court of Appeals reversed that ruling last November.

Gary’s lawyers had won the lower payment party by arguing Gowins had made $95,000 through investing the support money.

“The irony is that they had earlier argued that she had squandered that money and lost the investment,” Moss said. “She made some terrific investments and now they’re trying to use the good investment against her.”

A Blog of Interest

If you’re divorcing in NJ, you may want to check out the Divorce Blog New Jersey.  “Brontodon” is going through a divorce and he describes his experiences, including his attempt to convince his wife to go through mediation.

Mediating or Acting?

As you can probably tell from all the re-runs on network television these days, the writers have been on strike for the last several months.  They are striking to collect residuals and revenue from new technology driven sources such as DVDs and the internet.

Now, such Hollywood lumineries as George Clooney and Tom Hanks want to
mediate this to a resolution.  Clooney wants to set up a “mediation panel” to include himself, Hanks, Steven Spielberg, John Wells (ER’s producer) and a few others to force the sides to a solution. Clooney suggested its purpose should be to oversee the talks and tell the Writer’s Guild as each term is bargained “you have to live with this and get over it,” and tell the Producers “you have to live with that and get over it”, Weinstein quoted George as saying. It’s also Clooney’s idea that everybody would be locked in the room together and not leave until the deal is done.

I have long wondered why a mediator has not been called in to help these talks along. I could recommend several Los Angeles based colleagues who would do a very good job. However, Messrs. Clooney, Hanks, Spielberg and Wells would not be among my recommendations. First, they certainly have conflicts of interest (although they may certainly be doing this with good intent; the “Road to Perdition” is paved with good intention [pun intended]). Second, mediation is far more than ramming the mediator’s opinion down the throats of the participants, as Mr. Clooney’s comments seem to indicate. It is about working with the sides to identify interests, moving the parties away from pure positions, and guiding them towards a solution that can meet those interests. Third, like acting, it takes years of training and experience to be an effective mediator. None of the above folks have this training (they certainly have clout). An untrained mediator can do far more harm than good. A trained mediator will follow the Hippocratic creed of first doing no harm.

So, Mr. Clooney: nice idea, but find someone with the professional training, experience and clout to properly mediate this dispute. And, no, I am not volunteering.

Katrina Victims Files claim for $3 Quadrillion

From AP News….

NEW ORLEANS – Hurricane Katrina’s victims have put a price tag on their suffering and it is staggering — including one plaintiff seeking the unlikely sum of $3 quadrillion.

The total number — $3,014,170,389,176,410 — is the dollar figure so far sought from some 489,000 claims filed against the federal government over damage from the failure of levees and flood walls following the Aug. 29, 2005, hurricane.

Of the total number of claims, the U.S. Army Corps of Engineers said it has received 247 for at least $1 billion apiece, including the one for $3 quadrillion.

“That’s the mother of all high numbers,” said Loren Scott, a Baton Rouge-based economist.

For the sake of perspective: A mere $1 quadrillion would dwarf the U.S. gross domestic product, which Scott said was $13.2 trillion in 2007. A stack of one quadrillion pennies would reach Saturn.

Some residents may have grossly exaggerated their claims to send a message to the corps, which has accepted blame for poorly designing the failed levees.

“I understand the anger,” Scott said. “I also understand it’s a negotiating tactic: Aim high and negotiate down.”

Daniel Becnel, Jr., a lawyer who said his clients have filed more than 60,000 claims, said measuring Katrina’s devastation in dollars and cents is a nearly impossible task.

“There’s no way on earth you can figure it out,” he said. “The trauma these people have undergone is unlike anything that has occurred in the history of our country.”

The corps released zip codes, but no names, for the 247 claims of at least $1 billion. The list includes a $77 billion claim by the city of New Orleans. Fourteen involve a wrongful death claim. Fifteen were filed by businesses, including several insurance companies.

Little is known about the person who claimed $3 quadrillion. It was filed in Baker, 93 miles northwest of New Orleans. Baker is far from the epicenter of Katrina’s destruction, but the city has a trailer park where hundreds of evacuees have lived since the storm.

Katrina, which is blamed for more than 1,600 deaths in Louisiana and Mississippi, is considered the most destructive storm to ever hit the U.S. It caused at least $60 billion in insured losses and could cost Gulf Coast states up to $125 billion, according to the National Oceanic and Atmospheric Administration.

Most of the claims were filed before a deadline that coincided with Katrina’s second anniversary, but the Corps is still receiving them — about 100 claims have arrived over the past three weeks — and is feeding them into a computer database.

The Corps said it isn’t passing judgment on the merits of each claim. Federal courts are in charge of deciding if a claim is valid and how much compensation is warranted.

“It’s important to the person who filed it, so we’re taking every single claim seriously,” Corps spokeswoman Amanda Jones said.