What do you do?
As we discussed last time (my previous blogs on this subject can be found here and here), preparation ahead of litigation is the best way to navigate the dangerous waters of electronic discovery. But not everyone has had the luxury of a well-schooled corporate attorney, a careful army of IT support personnel, and attentive staff who always do exactly what they need to. Very few individuals implement a document retention policy for their day-to-day life, and most small-to-medium (and quite a few large) corporations either don’t have the time and resources or the wherewithal to get their affairs in order on the off chance that litigation will come down the pike some day.

Don’t panic. Take a deep breath, and remember—it’s never too late to think ahead. The keys to successfully managing electronic discovery are Preservation and Limitation. Too many litigants focus on the latter—do we really have to spend all this time gathering all this stuff? Can’t we keep them out of our files? This reaction, while natural, is the wrong approach, because it puts the real goal—prevailing in the litigation with as low an overall cost as possible—second behind cutting corners for short-term gain. What many litigants do not realize is that if you fail to properly preserve your data, the gaps will often prompt the other side to pelt you with a laundry list of increasingly invasive discovery demands which will ratchet your costs up even higher than responding fully and thoroughly the first time. Worse, it could lose your case entirely—see my last post for a brief discussion of the terrors of spoliation, the idea that a jury can assume the worst from any documents it concludes have been improperly lost or destroyed.

Tackling the Problem
Any lawyer worth their salt will tell you when they are hired not to get rid of any documents that could relate to the case. Usually, this comes in the form of a “litigation hold” letter that sets out exactly what you do and do not need to preserve. But the discovery preparation should not end there. Expect (and demand) your attorney to sit down with you and go over your entire IT system, how it is set up, what you maintain, and how access is handled. At this stage, it is particularly important to identify the key users who are involved in the subject matter of the litigation.

This may seem like a pain, and if you are lucky, you will never know just how valuable it is and how much you are saving in the long run by tackling the problem as soon as litigation arises. If your attorney knows your system, he may be able to limit the scope of discovery right up front (potentially even aiding your case on the merits, not just saving costs), and he or she will be armed with the information he or she needs to strike back when Mr. Purple Face comes banging on the door. A lawyer who has the tools to tell the court exactly how much the other side’s demands are going to cost is far more likely to get those demands stricken or limited than one who comes in and can only say it will cost “a lot.” Similarly, when a certified computer expert comes into court ready to testify that he has a forensically gathered all the relevant information from all the key custodians, a lot of wind is going to go out of opposing counsel’s spoliation witch-hunt.

The Value of Preparing Ahead
If this doesn’t sound cheap, that’s because it often isn’t—the value of preparing ahead of litigation, having a document retention policy, and coordinating with your corporate counsel cannot be overstated. But this principle carries through to every stage of the litigation, and spending the money to do it right up front gives you the ability to head off snowballing costs down the road. All too often, a client told to gather documents opens a file cabinet, collects what’s in his office, maybe remembers an email or two, and sends it off to counsel, claiming that’s “all there is.” That path leads to massive discovery bills, hundreds of hours of lost time on your end, and maybe even a lost case at the end of the day. Faced with those prospects, any money spent up front is money well spent.

One should begin this discussion by understanding the root claim supporting potential parental liability – negligence. Basic negligence requires: (1) a legal duty; (2) a breach of that duty; and (3) injury proximately caused by the breach. However, where in a typical claim for negligence a plaintiff seeks redress directly from the offender, here the claim is directed at a third party – the parent of the destructive child. Pursuing such a claim requires showing that a special relationship exists between the third party and the offender. Generally, two things must exist: (1) the defendant knows or should know of the third person’s propensities; and (2) the defendant has the ability and opportunity to control the third person at the time of the third person’s actions.

It is well-established in North Carolina and other jurisdictions that parents are (thankfully) not liable for the civil liabilities of their minor children solely by reason of their parent-child relationship. In fact, up until the early 1980s certain North Carolina cases arguably required specific involvement and/or approval by the parent of the child’s nefarious conduct in order to be held liable. Essentially, the child was viewed as a servant or agent of the parent and active parental participation at some level was necessary. Then, in 1982 the North Carolina Supreme Court chipped away at that parental protection and established a lower standard of care.

That year, in a case titled Moore v. Crumpton2, the Court encountered a tragic situation involving the June 1978 rape of a woman by a seventeen year old minor child. The plaintiff victim brought a personal injury action against the minor and his parents resulting from the crime. The evidence showed that the minor child suffered from several infirmities during his youth, but otherwise experienced a “comfortable and secure” home life. In his teenage years, the minor child began using various controlled substances and committed a few petty criminal offenses. As a result, his parents sent him to a private high school where he performed pretty well. They also consulted doctors, counselors and mental health professionals about their son’s behavior. None of the professionals who treated the minor child found evidence to suggest he was disposed to violent or dangerous behavior, even during early 1978. However, the minor child discontinued his counseling sessions. On the night at issue, his parents were out of town but made arrangements for him to stay with his grandparents. Prior to leaving for his grandparents’ home, but after his parents left town, the minor child obtained a large amount of whiskey from a friend, drank it, took some type of controlled substance, broke into the plaintiff’s home, and raped her.

The plaintiff claimed the parents should have exercised “reasonable care to control and supervise [their son] so as to prevent him from intentionally injuring others.” She asserted that the parents had notice of their son’s circumstances and historical conduct that required their efforts to ensure he did not injure others. The plaintiff further argued that this requirement served as the “legal duty” under the negligence standard. Thus, by not exercising reasonable care, the parents breached their legal duty owed to the plaintiff which proximately caused her injury.

The Court agreed to an extent. It held that a parent may be liable for not exercising reasonable control over a child if the parent (1) had the ability and opportunity to control his child and (2) knew or should have known of the necessity for exercising such control. However, applying that standard to the facts, the Court determined that the parents neither knew nor should have known of the necessity for controlling him. Although they were aware of his drug problems and other issues, the parents “had no recent information to indicate that an assault might occur or that [their son] might become involved in a forcible rape.” The Court further explained that neither parent had the ability to control him at the time of the rape and had made efforts to provide supervision in their absence. The plaintiff won her argument for the proper legal standard by which the defendant parents should be held. But, the Court disagreed with her belief that they failed to meet that standard, i.e., breached a legal duty owed to her.

Despite the variety of cases involving this issue that have matriculated through the legal system since the Moore decision, the North Carolina appellate courts have remained with the parental standard of care – albeit with some clarifications. For example, in one case a minor plaintiff sought personal injury damages from the father of an eight year old boy who struck the plaintiff in the eye with a golf club. The Court found no evidence to suggest that the defendant father should, by the exercise of due care, have reasonably foreseen that the child was likely to use a golf putter that way. The Court made clear that a parent is not an insurer of the safety of the child’s playmates. In a separate case, parents of a child accused of assault were sued for failing to supervise their child. The defendant parents claimed they should not be held liable for the crimes of their child. However, the evidence actually showed that the mother assisted the minor child in assaulting the plaintiff victim while the father stood by and refused to intervene. The court declined to protect the defendant mother who acted in concert with the minor child and the defendant father who ignored the plaintiff’s pleas for help.

The law recognizes that a parent is the first line of defense for the rest of the world when it comes to the actions of their children. Presumably parents have the greatest perspective and understanding about their children and their respective tendencies in interacting with others. Consequently, they are charged with exercising reasonable control over their children when they know (or should know) that there may be a problem. This standard exists without regard to whether the child’s act is intentional or merely negligence. However, for reasons described above, this responsibility is not limitless. There is a recognition that parents can only do so much. When one of my children give me a mischievous grin, I take some solace in that.

¹ This article solely considers a parent’s potential liability for the misconduct of a child.  Consideration of the principal liability of the child is a topic for another day.

² 306 N.C. 618, 295 S.E.2d 436 (1982).

Who is Responsible?

In the past, the law concerning a property owner’s responsibility for natural conditions1 occurring on her land has been that she is generally not liable for physical harm caused to outsiders, even if the conditions may be highly dangerous or inconvenient to neighbors. It’s important to note that this rule was developed at a time when most land was generally raw and undeveloped, so it would have been unduly taxing and unrealistic to inspect the expanse of property to ensure safety.

But With Every Rule, There Are Exceptions

For example, an owner of urban land who fails to exercise reasonable care about the condition of his tree might be subject to liability to persons using an adjacent public highway who are injured by the tree falling. That exception derived from a recognized distinction between urban and rural settings – that is, a rural landowner had no duty to address the safety of his property when such a duty would exist for an urban landowner. Of course, much has changed since that time when urban and rural areas were distinct and separate. Nowadays, that line frequently is blurred. In light of increased urbanization of communities, the exception has become more the rule.2

Currently, the general analysis of allocating liability between a landowner and outsiders for damage resulting from a fallen tree is largely based upon a negligence standard. A tree falls, property and/or individuals are injured, and liability is assessed. Generally, the landowner has a duty of common prudence and must exercise reasonable care to maintain his property and those conditions existing on it, such as trees. If the landowner had no actual or constructive knowledge of a defect in the tree which led to its collapse, he is not responsible for the resulting damage.

As an example of this evolved view, the North Carolina Court of Appeals recently considered a situation where a tree located on private property fell on and severely injured someone standing on a boat floating on a public waterway. The Court determined that a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway. That reasonable care means that liability exists only if the landowner had actual or constructive notice of a dangerous natural condition. For the injured party to prove the landowner liable, he needed to show that the tree constituted a dangerous condition to the travelers of the adjacent public road and the landowner had actual or constructive notice of the dangerous condition and failed to eliminate it.

The Devil’s in the Details

However, in North Carolina this is not the complete analysis. Since courts have applied a negligence-based standard to the landowner, certain defenses may be available for the landowner.  An example of this occurred back in the mid 1960s. The McGee Family owned property in Catawba County (the McGee Property) in absentee fashion (they apparently did not visit the property frequently). They sold a neighboring piece of land to a third party who later conveyed the parcel (the Rowe Property) to the Rowe Family. A large oak tree, existing through natural growth, was located on the McGee Property along the property line with the Rowe Property. At the time the McGee Family sold the Rowe Property, the oak tree was hollow, partially rotten, and leaned in such a way to suggest that if it fell, it would land on the Rowe Property. The McGee Family was aware of the tree’s condition when it sold the Rowe Property.  The tree subsequently fell and damaged the Rowe Property. The Rowe Family and their insurance carrier filed suit against the McGee Family seeking relief for the damage. North Carolina appellate courts had not yet considered the issue and there was not a consensus from other states. Based on the above facts, the Court determined that “where a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger.”

But, that was not the entire story. Evidence also showed that approximately eight to twelve months prior to the tree’s collapse, the Rowe Family discovered the tree’s condition and they obtained permission from the McGee Family to cut it down. Obviously, the Rowe Family did not follow through. As a result of these additional facts, the Court carefully expanded its consideration beyond the actions of just the McGee Family. Specifically, it recognized that a jury could interpret from these facts that the Rowe Family led the McGee Family, who were absentee owners of the McGee Property, to believe that the tree had been cut down and the danger eliminated. Thus, by the Rowe Family being aware of the danger, requesting and receiving approval from the McGee Family to remove the danger, then failing to do so, a jury could determine that they contributed to the problem negating their claims for relief. In North Carolina, if a claimant of negligence contributes to the underlying problem, they can be barred from obtaining relief.

Acts of God

A separate and common defense for landowners of fallen trees is pretty straightforward – sometimes things just happen. There is a little provision within the law called “vis major.” This premise is basically defined as a loss that results from a natural cause without human intervention and that could not have been prevented by reasonable care – an act of God. This is the situation when Mother Nature makes an unwelcomed visit and leaves in her wake downed trees causing property damage. In that situation, assuming the tree owner had exercised reasonable care in maintaining the tree and did not have actual or constructive knowledge of any issues, the general rule is the person on whose property the tree lands (be it real estate, a car, or an appendage) shoulders the cost.

So, what does this mean for us North Carolinians attempting to accommodate our beautiful treescapes with impending disaster and liability? Based on the existing law of our state and the general perspective offered by other jurisdictions, the typical urban landowner needs to pay attention to both their landscaping and that of their neighbors. Courts have noted that the fairly minor expenditures in time and money necessary to inspect and secure trees in a developed area pale in comparison with the increased danger and possible damages caused by a fallen tree. What if you or your property softens the landing of your neighbor’s felled tree? North Carolina and other state courts have recognized certain evidence of the tree’s prior condition that may be used to show whether the tree owner was negligent in exercising reasonable care. For example, photos of the tree, reports by tree professionals, testimony of neighbors and others who frequently had visual access to the tree, examples of insects found in or on the tree, pieces of the tree itself, correspondence between neighbors concerning the tree, and the location of the tree (near a well traveled walkway or playground, as examples). But remember, particularly in North Carolina which continues to recognize contributory negligence as shown by the McGee/Rowe story above, evidence that the recipient of the fallen tree knew of the imminent danger and did not make efforts to resolve the situation may negate an otherwise viable claim that the tree owner is responsible. Finally, no human may be at fault. Mother Nature is just as capable of leveling destruction as she is creating beautiful scenery.

1 An important distinction exists on this topic between a natural condition and one artificially created by a landowner. Generally, a landowner who changes the condition of the land in such a way that increases the risk of injury to others (planting trees, for example) will be subject to an increased standard or care should harm occur.

2 Some courts continue to recognize the old rule of nonliability of land owners for natural conditions existing in rural areas where parcels of land are substantially larger than their urban counterparts.

What do you mean, it depends? Depends on what? The other person harmed me!  I didn’t do anything to deserve it. I shouldn’t have to pay a lawyer to prove that I’m right. Doesn’t the law protect innocent people?

The general rule in North Carolina is that parties in civil cases pay their own attorney’s fees, regardless of who prevails at trial, unless a statute provides otherwise. The statutory exceptions to this general include the following types of claims, which authorize a party to request an award of attorneys’ fees:

Claims arising from personal injury or property damage, where the plaintiff recovers $10,000 or less and there was an unwarranted refusal by the insurance company to pay the claim.  (N.C.G.S. § 6-21.1)

Claims arising under a “note, conditional sale contract or other evidence of indebtedness.”  (N.C.G.S. § 6-21.2).  This covers traditional promissory notes, lease agreements, etc.  Note, however, that the amount of recoverable attorney’s fees is limited to 15% of the “outstanding balance” owed.

Claims arising under the North Carolina Unfair and Deceptive Trade Practice statutes.  (N.C.G.S. § 75-1.1, et seq.)

Claims brought by the other party that are found to be “nonjusticiable” (i.e., frivolous claims that involved “a complete absence of a justiciable issue of either law or fact”).  (N.C.G.S. § 6-21.5);

Claims arising from personal property or real property liens under Chapter 44A of the General Statutes.

Most business contracts contain some form of an attorney’s fee provision, which generally provides that, in the event either party breaches the terms of the agreement and the dispute is litigated or arbitrated, the losing party must pay the winning party’s attorney’s fees. Historically, North Carolina courts have refused to enforce these types of provisions.

That has now changed.

On June 27, 2011, North Carolina passed N.C.G.S. § 6-21.6, which expressly authorizes a prevailing party to recover reasonable attorney’s fees and expenses based on a reciprocal attorneys’ fee provision in a business contract. The law became effective on October 1, 2011, and applies to all business contracts executed on or after that date. Under the new law, a Court or arbitrator may award attorneys’ fees and expenses based on a contractual fee provision if:

1. the provision is reciprocal;
2. the provision is contained in a business contract; and
3. all parties to the contract sign it by hand.

Requirement of a reciprocal provision.
By its terms, the new statute only applies to attorneys’ fee provisions that are reciprocal, meaning that the provision is “applicable to all parties.”  § 6-21.6(a)(4). Provisions that authorize only one party to recover its fees will, therefore, remain unenforceable.

Requirement of a business contract.
The new statute also only applies to reciprocal attorneys’ fee provisions in “business contracts,” defined as, “[a] contract entered into primarily for business or commercial purposes.” Business contracts do not include (i) consumer contracts (entered into primarily for personal, family or household purposes), (ii) employment contracts (including traditional employer/employee contracts, as well as principal-independent contractor agreements); or (iii) contracts to which a North Carolina government or governmental agency is a party.

Method of signature execution.
For a reciprocal fee provision to be enforceable, each of the parties must have signed the business contract “by hand.” It is doubtful that electronic signatures, signature stamps or the like are sufficient to satisfy this requirement. Traditional, “ink” signatures should be used to ensure compliance with the execution requirement.

The amount awarded.
In determining the appropriate amount of attorneys’ fees and expenses to award a party, a court or arbitrator is required to consider 13 factors:

1. The amount in controversy and the results obtained.
2. The reasonableness of the time and labor expended, and the billing rates charged, by the attorneys.
3. The novelty and difficulty of the questions raised in the action.
4. The skill required to perform properly the legal services rendered.
5. 5. The relative economic circumstances of the parties.
6. 6. Settlement offers made prior to the institution of the action.
7. Offers of judgment pursuant to Rule 68 of the North Carolina Rules of Civil Procedure and whether judgment finally obtained was more favorable than such offers.
8. Whether a party unjustly exercised superior economic bargaining power in the conduct of the action.
9. The timing of settlement offers.
10. The amounts of settlement offers as compared to the verdict.
11. The extent to which the party seeking attorneys’ fees prevailed in the action.
12. The amount of attorneys’ fees awarded in similar cases.
13. The terms of the business contract.

Finally, although there is no statutory limit to the amount of attorneys’ fees and expenses that may be recovered in a particular case, the amount cannot be greater than the monetary damages actually recovered by the prevailing party on its underlying claims.

An Ounce of Prevention

Businesses would be wise to proactively take a second look at their existing contracts and take appropriate steps to revise them if necessary to comply with N.C. Gen. Stat. § 6-21.6. Doing so not only protects a business in the event of future litigation, but also provides leverage in favorably resolving potential disputes as they occur and prior to litigation.

The law provides mechanisms to protect victims of domestic violence. One such tool is a 50B Domestic Violence Protective Order. An entire courtroom at the Mecklenburg County Courthouse deals exclusively with domestic violence protective orders.

Chapter 50B of the North Carolina General Statutes allows parties to seek emergency relief and affords victims an opportunity to be heard on an expedited basis (generally the same day).

Filing for a 50B

In the event of domestic violence, a victim may first file a Complaint and Motion for a Domestic Violence Protective Order. A party may move the court for emergency relief if he  or she believes “there is a danger of serious and imminent injury to himself or herself or a minor child.” The Court will then hold an emergency ex parte hearing (which means that only the plaintiff is present) on the Complaint and Motion for a Domestic Violence Protective Order.

Chapter 50B Requirements

A finding of domestic violence, pursuant to Chapter 50B, requires a personal relationship between aggressor and victim, and includes, in part, “attempting to cause bodily injury, or intentionally causing bodily injury” or placing a person or a member of his or her family or household in fear of “imminent serious bodily injury or continued harassment…that rises to such a level as to inflict substantial emotional distress.” A personal relationship is defined as: current or former spouses, persons of the opposite sex who live together or have lived together, are related as parents and children, have a child in common, or are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.

Getting an Order

If at the ex parte hearing, the Judge determines that there is a danger of serious and imminent injury, the judge will enter what is called a “ten day” ex parte domestic violence protective order. These orders remain in effect until there is a hearing where both parties are present, which is held within ten days or  seven days from the date of service of process on the other party, whichever occurs later. The goal at the hearing is to secure a domestic violence protective order which lasts for one year.

Where emergency relief is sought, but no ex parte order is entered, a hearing will be held after five days notice to the other party or after five days from the date of service of process, whichever occurs first. A hearing will not be held until and unless the opposing party is served.

Note that the Violence Against Women Act provides that no court costs will be assessed  for the filing, issuance, registration or service of a protective order or petition for a protective order or witness subpoena.

Effect of an Order

A domestic violence protective order can be tailored as needed. For example, it can require the defendant to:

• Stay away from the plaintiff
• Refrain from assaulting, threatening, abusing, following, harassing, or    interfering with the plaintiff and any children residing with the plaintiff
• Stay away from plaintiff’s family members
• Relinquish any weapons in his or her possession
• Stay away from plaintiff’s pets
• Stay away from the plaintiff’s place of work, school, shelter and the like

If an individual subject to a domestic violence protective order violates that order, the plaintiff may call the police and that individual will be arrested if the police determine there is probable cause to believe that the order was knowingly violated.  Alternatively, the plaintiff may file a motion for contempt.

Obviously a court order is just a piece of paper, but it is an important tool for victims of domestic violence and can be the first step in a victim protecting him or herself.

If you are victim of domestic violence, seek assistance. Shelters and hotlines are available, in addition to the legal protections described above1. If you think you are in immediate danger, call the police.  Otherwise, contact an agency or attorney to help you. United Family Services is a local agency which can help. Legal aid also offers assistance to victims of domestic violence. Get the help you need.

“I feel like a criminal.”

In recent years, unscrupulous debt collectors have become much more aggressive in their collection tactics and efforts. Oftentimes, it is not the original owner of the debt – who may be more willing to work with consumers on payment plans or other alternatives – rather, it is third party debt collectors, who buy the debt for collection, that cross the line. These debt buyers’ businesses and jobs depend on the collector’s ability to collect on the debt, the time in which it takes for collection, and the amount collected. Coupled with the recent economic environment, this has led to more aggressive behavior and more panic for consumers.

Fortunately for consumers, North Carolina enacted the Fair Debt Collection Practices Act (N.C. G.S. § 58-70-1, et seq.) to allow consumers to fight back. This Act makes it illegal, in certain instances, for debt collectors to oppress, harass abuse, threaten, or engage in deceptive, fraudulent or misleading representation in attempting to collect a debt, amongst other prohibitions. This means that a debt collector may violate the act if he/she uses profane, obscene or abusive language; calls over and over; calls at times other than normal waking hours; or calls someone’s workplace (if they have been told not to do so). It is also forbidden for a debt collector to lie concerning the amount of a debt owed, their affiliation with any government agency, or that non-payment may result in arrest. A debt collector also cannot make or threaten false accusations, including notification to a credit reporting agency, that a consumer has not paid, or has willfully refused to pay a debt.

The penalties for an unscrupulous debt collector are equally severe. A debt collector who is found to have violated the act may be held liable for the amount of actual damages suffered by the consumer, in addition to statutory damages of between $500.00 and $4,000.00 for each violation, punitive damages, and the consumer’s attorneys’ fees.

If you get contacted by an unsavory debt collector, here are some tips that may prove helpful:

Get proof of the debt. You should make sure that you owe the money and that the collection agency, or their client, actually owns the debt. Also, ensure that the debt is still collectible and that the time allowed by law to collect on the debt has not expired. Some documents you may want the debt collector to send you include verification of the debt, including the name of the original creditor, the name and contact information for the collection agency, the original consumer account number, an itemized account showing the amount of the debt owed, the date of the original debt, when and how the debt was transferred (if applicable), and a copy of the contract or other document evidencing the debt.

Document The Debt Collector’s Words and Actions. It is a good idea to keep and maintain a detailed record of what the debt collector says and does, especially for any bad acts. The more specific and detailed you can be, the better off you will be down the road.

Be Careful What You Say. Anything you say can and will be used against you. The Fair Debt Act provides that debt collectors must identify themselves, let you know that they are attempting to collect a debt, and warn you that anything you say to them is fair game. Debt collectors will try to get as much information out of you as possible. They want to be able to track you and your finances. You may not need to provide your social security number or any financial information. If you are ready and able to pay the debt, be it through a payment plan or otherwise, make sure that you can afford what you agree to pay. Never promise a payment you can’t make. Know your rights. If you legitimately owe the debt and refuse to pay, a lawsuit may be brought against you to collect the debt. You can’t, however, be sent to prison because you can’t pay.

If you think your rights were violated during the collection of a debt, don’t be afraid to fight back.

You can contact the Better Business Bureau (www.bbb.org), the Federal Trade Commission (www.ftc.gov), the State Attorney General for North Carolina (www.ncdoj.gov), or you may be able to file a lawsuit against the debt collector for their bad acts.

On Tuesday, September 13, 2011, the North Carolina Senate voted 30-16 to put a constitutional amendment on the ballot in May 2012 seeking to further ban gay marriage in North Carolina. The House approved the initiative the day before, by a vote of 75-42. If approved by voters, the amendment would become effective January 1, 2013.

At the outset of this discussion, it is worth noting that North Carolina law does not presently permit or recognize gay marriage. General Statute § 51-1.2 specifically provides: “Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.” Since that law went into effect on June 1, 2006, it has not been challenged in any North Carolina appellate court.

Previously, the legislature has voted down attempts to write a ban on gay marriage into our State’s constitution. North Carolina remained the sole Southeastern state without such a constitutional ban. However, the amendment was recently introduced again, and was this time passed by both houses.

The amendment, as approved by the legislature, would read:

“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.

This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

Interestingly, although the bill approved by the legislature contained the second paragraph (above), designed to narrow the scope of the amendment by expressly stating it would not be applicable to private contracts or their enforcement, due to an oversight only the first paragraph of the bill will appear on the ballot for voters’ decision. If the ballot initiative passes, confusion may ensue regarding which language will actually be added to the constitution.

In either event, the effect of the amendment if passed is unclear. The phrase “domestic legal union” has never before been interpreted by our Courts, has never before been written in our statutes, and has never before been interpreted by a court of any other state. The language is broad and potentially far-reaching, affecting legal rights for unmarried couples, both same-sex and opposite-sex.

The impact would most likely be seen in the following areas:

Domestic Violence Laws
Presently, relief for domestic violence victims is available not only to married couples, but also to: persons of the opposite sex who live together or have lived together; people who have a child in common, whether married or unmarried; current or former household members; and persons of the opposite sex who are in a dating relationship or who have been in a dating relationship. If the amendment passes, it could be argued that affording domestic violence protection to unmarried couples (whether same-sex or opposite-sex) is an unconstitutional recognition of “domestic legal union” other than “marriage between a man and a woman.” At least one other state court has found similar domestic violence protections to be unconstitutional after the passage of an constitutional amendment banning gay marriage.

Domestic Partnership Registration
At least seven local governments within North Carolina (the towns of Carrboro and Chapel Hill, the city of Durham, and the counties of Orange, Durham, Greensboro, and Mecklenburg) offer registration for domestic partnerships and some limited benefits to the registered partners of their employees. Additionally, a number of private employers offer benefits to the domestic partners of their employees. These registrations and the associated benefits would almost certainly be rendered unconstitutional.

Family Law Matters
For decades, North Carolina has recognized the legality and enforceability of private contracts between unmarried cohabitants regarding their finances and property rights, as well as equitable claims for relief upon a separation. If the amendment is adopted without the second paragraph (specifically recognizing the continued enforceability of private contracts), couples’ abilities to enter into enforceable private contracts could be drawn into question. Either version of the amendment could have significant impact on their rights to seek equitable relief in a court of law.

Our Courts have also recognized the rights of non-biological parents when an unmarried couple intentionally created a family and created a parent-child relationship with the non-biological partner. It is conceivable that a family court judge would view this relationship and the corresponding custodial rights as unconstitutional if the amendment is passed.

Estate Planning Issues
The enforceability of wills, trusts, and powers of attorney used by unmarried couples to provide for their end of life decisions and property transfers would be subject to significant uncertaintyin light of the amendment.

The latest census data (from 2010) estimates there are 27,250 same-sex couples and 222,832 unmarried, opposite sex couples residing together in North Carolina. If the amendment passes, it will impact a large number of North Carolinians in both the ways set forth above, as well as in ways presently unknown that will be determined as our courts wrestle with the application of the new law.

Typically, good parents do their homework before this important conversation and it should come as no surprise that in this Digital Age, most of this homework is done on the internet. Problem: The information available on the internet about what to tell (and sometimes more importantly what not to tell) your children when you are getting a divorce can be overwhelming.

For example:

Google “Effects of Divorce on Children,” and get 1,710,000 results.

“How to Talk to Your Children about Divorce” returns 32,400,000 results.

“What to Tell Your Children about Divorce” returns 32,200,000 results.

In an effort to assist my clients and alleviate some of the panic created by the enormous volume of information out there about this topic, I compiled the tips I think are the most helpful when discussing divorce with your children:

1. Prepare for the Conversation Together.
Try to put aside the hurt and anger you may be feeling, so that you can make decisions together about the details you’ll need to tell your children. Plan to meet and work through what you will tell your children ahead of time. If it’s extremely difficult to speak with one another, consider using the services of a family trained mediator, therapist, clergy or someone you both trust to help you work out the details.

2. Tell Your Children Together.
Set aside a time for a “family meeting.” By presenting this information together, you send your children the important message that you are capable of working together for their benefit.

3. A Healthy Expression of Emotion is Okay, Assigning Blame Isn’t.
“You only get one chance to make a first impression.” The manner in which you present this news to your children will, in large part, determine their reaction to the news. Expressing sadness over the changing dynamic of your family is to be expected. Expressing anger or engaging in a screaming match in front of your children (which may also be expected) is not in the best interest of your children. Avoid the tendency to assign blame or say whose “fault” this is. To the extent that you can, try to incorporate the word “we” when you’re explaining the decisions that have been made.

4. Children are Going to Ask, So You Are Going to Need to Be Prepared to Provide a General Reason for What is Happening.
It is not important, or even appropriate, that you provide specific details about why you are planning a divorce. (I also advise clients to keep this in mind when discussing their divorce with the general public… but that is an entirely separate article.) You should be prepared to give some type of general explanation.

5. To the Extent You Know, Provide Specific Details About the Changes Your Children Can Expect.
You can help your children to be prepared for future changes by being honest about what you know, and what you don’t know. In any event, you should let your children know that they do not need to worry because you love them and you (as the parents) are going to figure out an arrangement that works best for them.

6. Reassure the Children about Their Relationships with Both Parents.
Children need to be reassured that they are going to be able to maintain a quality relationship with both parents, even though they won’t be living under the same roof. Your children need to know that it is okay to love both of you. The feelings of guilt and conflicted loyalty that can be created in children of divorcing parents are serious issues that can cause life long damaging effects.

7. Reassure the Children the Divorce is Not Their Fault.
It is important to let your children know that nothing they did could have caused – or prevented – what is happening. Avoid making long-range promises about an uncertain future. Instead, stick with the assurances you can make for the present time.

8. Be Sensitive to Your Children’s Reaction to the News.
What you’re telling your children may be completely unexpected, and will most assuredly change their lives. Try to be as understanding of no reaction – which is a reaction – as you would be if the children were in tears or extremely angry. Your children may not know how to express their intense emotions appropriately, and it may be some time before they can articulate their feelings. Involving an objective ear, like a child psychologist, can provide an outlet for your children to talk about their feelings related to the divorce.

9. Welcome Their Questions.
Most likely, the children will have many questions. To the extent that you can, be honest and clear in your responses. If you don’t know the answer to a question, tell them that. Also, realize that this conversation will unfold in many parts. After you’ve told the children about the divorce or separation, expect to revisit the topic many times as new questions and concerns arise.

10. Give Them Time to Adjust to the News.
It will take time for your children to adjust to this news. It is a huge change, and while you may be confident in the hopeful future you envision for them, it will take some time for them to see that future play out. In the meantime, be patient with their needs and make the effort to be a steady presence in their lives.

Of course, this list is not exhaustive, and every situation and family calls for its own responses and strategies. You know your kids. Use your best judgment and keep your eyes on the prize: Children who weather a divorce with resilience and a sense of security.

In March of this year, the EEOC issued its final regulations to implement the ADA Amendments Act (“ADAAA”), which was signed into law in September 2008. The ADAAA sharply redefined the standard an employee must meet to show that he or she is “disabled” under the ADA.

The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of having such an impairment; or (3) being regarded as having such an impairment. Congress drafted the ADAAA to respond to two disturbing trends that had developed in the case law regarding what it meant to be “substantially limited” in a major life activity – first, that courts would not define an individual as disabled under the ADA despite the presence of impairment in a major life activity if the impairment could be ameliorated through medications, devices, or other means; and second, that an individual would not be defined as disabled if the impairment affected only activities related to his or her job, as opposed to “daily life.” As a result of these two trends, a good deal of litigation in ADA cases revolved around whether a plaintiff employee was actually “disabled,” without ever reaching the question of the employer’s behavior.

With the ADAAA, Congress explicitly rejected the courts’ increasing throttling of the purposes of the ADA. Significantly, Congress directed that the courts’ primary focus should be whether employers had actually complied with their obligations, and that whether the plaintiff employee was disabled should not demand extensive analysis.

The new EEOC regulations keep with this direction. Two particularly important phrases in the definition of disability have changed: “substantially limits,” and “major life activity.” Taking them in reverse order, the EEOC now defines “major life activity” as including both specific tasks, such as caring for oneself, seeing, hearing, etc., and the operation of major bodily functions, including the function of bodily symptoms or individual organs. The EEOC specifically instructs that the term “major life activity” is not meant to be a demanding standard – and an activity or function can be “major,” for purposes of the regulations, regardless of whether it is “of central importance to daily life.”

The definition of “substantially limits” has been even more dramatically altered. The EEOC now advises that the impairment does not have to prevent, or even significantly restrict, the individual from performing a major life activity in order to limit it. The limitation is considered without regard to mitigating measures (with the exception of ordinary eyeglasses or contact lenses), and can be considered limiting even if it is episodic, in remission, temporary, or affecting only one activity. This determination is to be made on an individualized basis.

As a practical matter, an employer confronted with a disabled employee has both a simpler job and a more difficult job under the ADAAA. The employer need no longer analyze whether an employee is, in fact, disabled – a task probably better left to medical professionals than human resources professionals in any event. Instead, under the ADAAA, employers can focus on the underlying purpose of the ADA: figuring out how best to reasonably accommodate the disabled employee.

It is critical to this process that employers engage in the informal interactive process prescribed by the EEOC. In this regard, the involvement of counsel can be extremely helpful, if not critical, to employers trying to understand precisely what their obligations are. All too often, employers either fail to accommodate employees or “accommodate” them to the extent of impairing their ability to work productively. Counsel can help employers avoid pitfalls. Moreover, involving counsel can help the employer’s business focus on improving its own productivity, rather than defending ADA litigation that could have been avoided.

While few businesses enter a contract expecting to end up in future litigation, a bit of planning may save you or your company many thousands of dollars if the unexpected occurs. If your business is located in North Carolina, you probably don’t want to end up in litigation in Minnesota.2

Why?

• All of the time that you or your employees spend traveling to and from Minnesota is time that could have been spent here at home making money. And, all of that travel is expensive.

• You’ll need to hire counsel in Minnesota, who you’ve never used before. Not only is that uncomfortable, but if you want your local lawyers doing the bulk of the work, you are now paying two firms instead of one. If and when your local lawyers travel to Minnesota for hearings or trial, you’ll be paying for your lawyer’s travel time and expenses as well.

• Odds are, a Minnesota judge and jury will be much more familiar with your adversary than you. While such things shouldn’t matter, they sometimes do.

• You’ll be more familiar with your hometown judges. While you certainly cannot guarantee better litigation results with a hometown judge and jury, at least you are dealing with more of a known quantity. Your local lawyers have an idea of how certain judges will approach certain cases.

If this matters to you, consider including a choice of law and an exclusive forum selection clause in your business contracts.

Choice of Law Provision
Choice of law provisions are exactly what they sound like. Parties to a business contract are free to choose which state’s laws will apply to the contract and any disputes that arise regarding that contract. Generally speaking, they are enforced by the courts, unless the chosen state’s law bears no relationship to the contract or the parties, or if the chosen state’s laws, when applied, would violate the public policy of this state. If you are located in North Carolina and specify that North Carolina law shall apply to the contract and any disputes between the parties, in all likelihood, the provision will be enforced. If you are located in North Carolina, but know that Minnesota law would be particularly good for you if a dispute developed, a provision specifying that Minnesota law will be applied will likely be enforced if your adversary is located in Minnesota, or if the contract was to be performed in Minnesota.

Forum Selection Clause
Forum selection clauses, on the other hand, set forth where a lawsuit may be filed if a dispute develops. The parties generally may agree to a particular jurisdiction (one or more particular states), a specific venue (generally speaking, federal court or state court), or both (such as the state courts located within a particular state) and may be as restrictive as they’d like. Parties may even narrow the forum down to courts located within a particular county. For example, the parties could choose to limit the forum of their disputes to state courts located within Mecklenburg County, North Carolina. Just make sure that the chosen forum bears some relationship to the contract (again, if one of the parties is located there, or the contract was to be performed there, the provision is likely enforceable).

Be careful with your forum selection clauses however. Be clear that jurisdiction and venue lie “only” or “solely” in a particular place. If you are, courts will treat the provision as a mandatory clause, keeping jurisdiction and venue exclusive to the chosen forum. If you aren’t clear, courts will instead treat the provision as a “consent to jurisdiction” clause, and find only that the chosen forum is an acceptable, rather than a mandatory place to litigate.

Finally, you shouldn’t feel compelled to match the chosen law with the chosen jurisdiction. North Carolina courts can enforce Minnesota law, and vice versa.

Be aware, however, that some states, like North Carolina, frown upon forum selection clauses that require disputes to be litigated in other states. For example, if a contract is made in North Carolina, we have a statute (N.C. Gen. Stat. § 22B-3) that declares the forum selection clause to be unenforceable in many situations.3 Each deal is different, so every forum selection clause should be carefully drafted to ensure that it is enforceable.

Be First
If you haven’t included a choice of law and/or forum selection clause in a contract and believe that your dispute is headed towards litigation, you can go a long way towards ensuring that you’ll litigate at home by being the first to file a lawsuit. Generally speaking, the plaintiff chooses the forum, and a defendant’s ability to move the lawsuit elsewhere is quite limited. Under the “first to file” rule, if your adversary files a different lawsuit in Minnesota, it will likely be dismissed if you previously filed suit over the same dispute here in North Carolina. If you are crunched for time or your dispute heats up very quickly, North Carolina courts allow a plaintiff to apply for an order extending the time to file a complaint, and the action is considered to have commenced when the plaintiff files the application. The application takes only a few minutes to complete.

That said, with a little planning on the front end, you can litigate at home and get the benefit of the most favorable laws. And all of that just might save you and your business some time and money, while giving you the best shot at winning your lawsuit.

1 Cable Tel Services, Inc. v. Overland Contracting, Inc., 154 N.C.App. 639 (2002).

2 I have nothing against Minnesota. I’ve been there, and it is beautiful. But it is a long ways away.

3 A contract is considered “made in” the state where the last act occurred to finalize the deal (usually, but not always, where the last party signed off on the agreement).