Month: May 2017 (page 1 of 3)

What ‘My Cousin Vinny’ Got Wrong: Public Defenders Fulfill Gideon’s Promise Day In, Day Out

By Kearns Davis

Fred Lind, Chief Public Defender for Guilford County, recently shared a letter from a juror:

Last week I had the privilege of serving on a jury for a case defended by Mr. A. Brennan Aberle. I was so impressed by his performance on this case I felt I had to put something on the record. At the start Mr. Aberle promised a defense based on facts and reason, and he delivered on that promise. …

I am often worried that justice is only for those who can afford it, but Mr. Aberle’s effective defense of his client reassures me that the freedom of ALL residents of Guilford County is well-protected by your office. I don’t believe a better defense could have been purchased at any price.

“My Cousin Vinny” (1992) is a legal film classic. But its caricature of a stammering, timid, poorly prepared public defender reinforced a stereotype that is widely shared but wildly wrong. As those who appear regularly in criminal court know, public defenders are experts. It is the public defender who spends every day in the same courthouse, working with judges and prosecutors and handling the cases that are staples for indigent clients. One United States district judge, who observes skilled, experienced counsel every day, describes the Federal Public Defender’s office in his district as, “lawyer for lawyer, the best trial law firm in the State of North Carolina.”

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In Re Gault: Defending the Defenders and the Due Process They Protect

By Eric J. Zogry

May 15, 2017 marked the 50th anniversary of the United States Supreme Court decision In re Gault. Gerald Gault was a 16-year-old adjudicated and confined for making an illicit phone call to an elderly neighbor. Gerald was given no notice of the charges, no attorney, no opportunity to cross examine witnesses, and not informed of his right to remain silent when speaking to authorities. The Supreme Court determined these rights apply in juvenile delinquency court, firmly establishing the rule of law and due process.

While Gault emphasized the importance of counsel in juvenile proceedings, the ensuing response from court systems across the country has been mixed. Some states have a mandatory right to counsel, other states still require a showing of indigency from the parents. Attorneys might be appointed at the earliest stages of the case, like arrest, while others may have to wait until after arraignment, even being unrepresented at a detention hearing. Legal representation frequently ends after a disposition or sentence is entered, but what about the “guiding hand” of counsel while on probation or in a secured facility? Are attorneys properly trained, supported, and financed, or does juvenile defense continue to take a back seat to adult criminal representation? These issues and more need to be addressed before the promise of Gault can be fully achieved.

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Fourth Circuit Provides Guidance On Return to Work Pursuant to FMLA

By Sabrina Presnell Rockoff

On May 16, 2017, the 4th Circuit issued an opinion in Waag v. Sotera Def. Solutions, Inc., 2017 U.S. App. LEXIS 8587, providing further guidance regarding an employer’s responsibilities to return an employee to work following FMLA leave.

Mr. Waag brought the action against his former employer, Sotera Defense Solutions, Inc., a federal defense contractor, alleging a violation of the Family Medical Leave Act by not restoring him to his position when he returned from a medical leave; by placing him in a job that was not equivalent to the one he held before the leave; and by terminating him from the new job because he took medical leave.  The District Court for the Eastern District of Virginia granted summary judgment to the employer.  The 4th Circuit affirmed.

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MacCord’s List: IP Notices & News From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please click on the links below for the most recent updates.

Copyright Office Proposes Rule to Modernize Document Recordation

USPTO Seeks Comments on Possible New Streamlined Procedure for Cancellation of Trademark Registrations

 

Congratulations To Kayla Cobler, 2017 Paralegal Student Member Scholarship Winner

The Paralegal Student Scholarship Essay topic this year was “Why Being a Paralegal Is Important To Me.”  The winning submission is courtesy of Kayla Cobler, a student in the paralegal program at Davidson County Community College. The student scholarship provides an award of $500 for tuition to a North Carolina resident enrolled in a North Carolina Qualified Paralegal Studies Program.

Why Being a Paralegal Is Important To Me

When deciding what my future might hold, I went back and forth between a teacher and a banker. I started my journey to becoming a banker at UNCG at the ripe age of 17. After a few business classes, I decided that banking wasn’t how I wanted to spend the rest of my life. I enjoyed the interaction with different people on a day to day basis, but I felt like something was missing. After spending a few days upset and down with myself, confused as to what my future was really going to hold, I started digging deep and thinking about what I could see myself doing every day for the rest of my life. I wanted to do something that impacted not only my personal goals, but also impacted society. It was important to me that I chose something that did not feel like a job, but something that felt more like a hobby. No one wants to go to work every day and dread the job they have. I have watched so many of my peers go to college and earn degrees for something they have no interest in or passion for. I don’t want to go through life everyday just living the motion. I want to feel that I am impacting society and bettering myself and everyone around me on a daily basis.

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Congratulations To Phebe Kirby, 2017 Paralegal Division Member Scholarship Winner

The Paralegal Member Scholarship Essay topic this year was “What are the benefits of being involved in paralegal associations?” The winning submission is courtesy of Paralegal Division Member Phebe Kirby. The Paralegal Division Member Scholarship provides an award of a Paralegal Division membership, a section membership, registration for the 2018 Paralegal Division Annual Meeting and Seminar, a CLE/CPE Passport to attend eligible programs tuition free, and up to $100 travel expense reimbursement (total value of approximately $800).

What are the benefits of being involved in paralegal associations?

I have been a paralegal for over five years now and I must say that I do love my job. However, a few months ago, I was struggling with two estate files, and it was beginning to cause me a lot of undue stress. Normally, I am able to leave at five and I don’t have an issue with working overtime or bringing my work home with me. But with these two estates files, I was pondering my dilemma at home, thinking about the issues constantly and talking about it to my husband until he frankly was bored. I am not sure why I struggled so much. We don’t do estates in my office, and I let the whole situation become overwhelming to the point that I was not sure what to do.

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One Car Crash, Two Miracles and the Many Wonders of BarCARES

By Jeff Bradford

I’m presently in my fifth year on the board of directors for BarCARES, a wonderful non-profit that provides a wide array of confidential counseling services to lawyers and their families.

My BarCARES story began on July 15, 2009. I was driving home from a nurse expert deposition in Greensboro when I met Gerline. I met her at about 5 p.m. in the left-hand lane of Highpoint Road, between a Toys R Us and a Bojangles’. I was traveling about 45 mph when she turned out of the opposite left-hand lane, through the turn lane, and directly in front of me. I had no time to react. I just hit the brakes, decelerated maybe 5 or 10 mph, and then slammed into her. My airbag deployed as I caromed across several lanes of traffic to my right, pushing her along with me. It was extremely frightening. We ended up directly in front of Bojangles’.

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Congress Overrides Seifert Rule for Military Pension Division

By Mark E. Sullivan

The New Pension Division Rule

Without notice to North Carolina or consultation with its Congressional delegation, Congress enacted, on Dec. 23, 2016, the National Defense Authorization Act for Fiscal Year 2017 (NDAA 17) and overrode North Carolina’s Seifert[1] formula and N.C.G.S. § 50-20.1(a)(3) and (d) for dividing pensions, as applied to military retired pay. With North Carolina’s substantial military population – the third-largest in the country – this means that many lawyers need to know how to present testimony and evidence in contested pension division cases, as well as how to prepare a properly worded military pension division order (MPDO).

This new rule will require a new set of skills for such lawyers.

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City’s Renege On Economic Development Loan Insightful On Employment Issues

By Jonathan Wall

What does a case involving a city council’s refusal to go forward with an economic development loan have to do with employment law?  Plenty!  In Woods v. City of Greensboro, ___ F.3d ___, 2017 WL 174898 (4th Cir. May 5, 2017), a 4th Circuit panel relied heavily on employment law and again indicated that weighing facts has no place in a Rule 12(b)(6) determination.

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Federal Income Tax Update: Part 2

By Keith A. Wood

This is the second of two installments of this article. The first installment was posted on the Tax Section blog on Jan. 16, 2017.

I. Hobby Losses: Horse Breeder Had For-Profit Activity.

The 7th Circuit Court of Appeals reversed the Tax Court and held Mr. Roberts engaged in his horse training activity “for profit.”  Roberts v. Commissioner, 117 AFTR 2d 2016-629. The IRS disallowed certain horse breeding activity losses for 2005 through 2008. In reviewing all of the relevant facts, the Tax Court determined although Mr. Roberts did not engage in the activity for profit during the first two years, he was engaged in horse related activities for profit under Section 183 for the last two tax years.

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