In a time where pop culture has so much influence on the way we think and act, a further examination of some of North America’s most popular lyrics poses concerns for how young minds are being shaped. Even as many of us belt out these lyrics with little thought about their content, a deeper analysis is necessary to determine their possible impact on society. In songs from artists ranging from Justin Bieber to Alt-J, concerning similarities can be seen, particularly on the subjects of assault and consent.
In “U.O.E.N.O” by Rick Ross, the following lyrics are cause for concern: “Put Molly all in her champagne, she ain’t even know it. I took her home and I enjoyed that, she ain’t even know it”. These lyrics not only represents a non-consensual drugging, but also hint at a likely sexual assault. If this were to actually happen, the result would (or should) be a charge under section 265 of the Criminal Code. While many will brush off such lyrics as simple “make believe”, their popularity reflects a dangerous indifference toward the dangers women face from the use of date rape drugs.
In Justin Bieber’s hit song “What Do You Mean”, he sings “What do you mean? When you nod your head yes but you wanna say no?” If Justin Bieber were to press ahead with sexual acts notwithstanding this knowledge, he would likely be charged with sexual assault. The actus reus would be met given that the victim’s subjective mind is a lack of consent. Moreover, given Justin Bieber’s knowledge of this lack of consent, the mens rea of the offence would also be established.
Another song worth mentioning is “Breezeblocks” by Alt-J, which includes the following lyrics: “She may contain the urge to run away but hold her down with soggy clothes and breeze blocks”. This passage sounds a lot like an assault. In fact, every aspect the offence of assault under the Criminal Code is made out in this passage. The perpetrator’s conduct involves the application of force, that force is applied against the victim, and the absence of consent is obvious from the victim’s urge to run away. If these lyrics reflected a real life scenario, the outcome of any criminal proceeding ought to be a conviction under section 265 of the Criminal Code.
The title of the song ‘Blurred Lines’ by Robin Thicke, is alone worrisome. This song, on the subject of consent, states “I hate those blurred lines. I know you want it. I hate them lines”. This promotes the idea that determining consent is a difficult task and that the signals received are not always clear. However, Canadian law has held that this “blurred line” is absolutely no defence, and that the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying ‘no’, but it is also satisfied when it is shown that the accused knew that the complainant was essentially not saying ‘yes’. These lyrics are clearly inconsistent with the current state of the law, making it difficult to understand why they are they are still being promoted.
Finally, there is “Blame it on the Alcohol”, in which Jamie Foxx sings, “But she don’t wanna seem like she easy. I hear you saying what ya wont’ do. But you know we probably goin’ do”. The general theme of this song wrongfully promotes the idea that, where a person is intoxicated to the point where he or she is unable to say ‘no’, consent has somehow been established. As stated above, the law holds that the requisite mens rea exists even where the victim is essentially not saying ‘yes’. Similarly, a person who is unconscious, possibly as a result of excess alcohol consumption, can in no way consent to sexual activity.
The above analysis is not meant to suggest that the artists in question have committed, or necessarily even condone, the criminal acts described in these songs. At a minimum, however, the prevalence and popularity of these lyrics demonstrate a widespread inability to understand the concept of consent. These lyrics will continue to normalize assault and, more specifically, sexual crimes against women. While there are many other songs that attempt to raise awareness about sexual assault, one wonders whether these positive messages are lost in a sea of lyrics that seem to promote and even celebrate aggressive and illegal behaviours. The hope is that, with women’s issues increasingly coming to the forefront, popular artists will demonstrate greater responsibility and lyrics of the sort described in this paper will become a thing of the past.
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January 28, 2018 marked 30 years since the Supreme Court of Canada struck down Canada’s abortion laws as unconstitutional in R. v. Morgentaler. Since then, the road to legal, accessible, and safe abortion services has been a rocky one. In Manitoba, politicians from across the spectrum have resisted increasing access to abortions since the 1988 constitutional decision.
More recently, discussion surrounding abortion has become one that has focused on access and not of criminalization. Progress in Canada, although slow, has been made. Plan B or colloquially named the “morning after pill” (an emergency contraceptive pill) became available to the public without a prescription in 2005. However, those requesting the pill needed to fill out a form with personal information that remained at the pharmacy. In 2008, this requirement was removed. Similarly, Mifegymiso, aka the abortion pill has also seen a slow introduction into the Canadian health care system, specifically in Manitoba where access has been limited to certain sites. Manitoba and Saskatchewan are the only two provinces that do not provide full coverage for the pill. Under the current guidelines, free access is only available at HSC, Women’s Health Clinic or at the Brandon Regional Health Centre. Access for women outside of these major cities is limited and requires women to pay the full cost which is around $350. Currently, the pill costs around $300, and if you cannot afford that you can only access it at approved sites (in Winnipeg, HSC and Women’s Health Clinic).
The conversation at the political level regarding Mifegmiso seems to be heating up as we also saw a private member’s bill introduced by the NDP that would ban protestors from being with a certain distance from abortion clinics and hospitals in Manitoba. The current government did not support the bill because of the fear that it would infringe on people’s right to protest. Students have also been active in supporting increasing access, where just this week medical students advocated that access to Mifegymiso should be increased.
It seems as though it was a different generation where there it was dangerous to be providing services or advocating on behalf of progress for reproductive rights. Some may not remember an incident that took place in a St. Vital home on November 11, 1997. Dr. Jack Fainman, head of obstetrics and gynecology at Victoria Hospital, was watching TV when he was shot through the back window of his house. He provided abortion services. Although he survived his attack, this was a career ending incident for Dr. Fainman who was not able to practice again. The suspect of the shooting was never conclusively identified, but it has long been assumed that it was American anti-abortionist James Kopp. Kopp’s also shot and killed Dr. Barnett Slepian on October 23, 1998. He is also suspected of shooting two other Canadian doctors. The 1995 attempted murder of Dr. Hugh Short in Ancaster, Ontario and the 1994 shooting of Dr. Garson Romalis in Vancouver, which is considered the first attempted shooting of an abortion provider in Canada. There was also an attempt on an unnamed physician in Rochester, New York in 1997.
Kopp had received his master’s degree in embryology from Cal-State Fullerton and was a well-known anti-abortion advocate. He initially vehemently denied his involvement with Dr. Slepian’s muder however on November 20,2002 in an interview with the Buffalo News he confessed to the murder. He was tried and charged but claimed his intention was never meant to kill Dr. Slepian, simply injure him so that he could not continue providing abortion services. He continues to deny that he had any role in the Canadian shootings.
To be clear, the number of incidents of violence and disruption against abortion providers in Canada and the US has decreased substantially since the 1990’s which saw 8 murders of doctors and clinic staff and 19 attempted murder. Prior to the attack on the Planned Parenthood location in Colorado in 2015 that killed three people, the last attack was in 2009 on Dr. George Tiller, a member of the National Abortion Federation, who was assassinated in his church in Wichita, Kansas. Dr. Tiller was one of few US physicians who performed late term abortion. Dr. Tiller had been shot at once before in 1993 but had survived that attack. The last identified attack in Canada was in 2000 and once again against Dr. Garson Romalis, when he was stabbed in the parking lot of his medical practice. He survived but the suspect was never identified.
It has been 30 years since Morgentaler, and this brief post skims the Canadian history on how we have approached abortion. It seems as though we have come so far from the earlier days of frenzied anti-abortion protests. But have we?
Having spent some time working with an abortion provider in Winnipeg, I recognize clear signs that there remains a dark undercurrent for reproductive access. It is not only featured in the broken window that graces the front of the clinic, or the lack of attention directed at funding, but it is demonstrated in the anonymity of the location where the abortions take place. Just ask yourself, unless you have had to know, do you know where these services are provided? I can tell you it’s an iron orange door. Only accessible with a swipe card, and then you have to be buzzed into as small room, where you will then be granted access the clinic. There is no signage that directs you how to get there and even google requires more than your average search to find information about how to access the clinic. It seems like an oxymoron that as these clinics and advocates attempt to increase accessibility to these services, in order to ensure safety, they actually have to reduce their accessibility by making their locations difficult to find.
Certainly, Canada continues to make progress, and maybe when we celebrate Morgentaler’s 60th anniversary all women can too.
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Thirty Years Since Morgentaler published first on https://medium.com/@SanAntonioAttorney via Tumblr Thirty Years Since Morgentaler Neurosurgeons, who specialize in the surgical treatment of diseases and injuries affecting the nervous system, are frequently called upon to consult and testify as expert witnesses in medical malpractice cases. Neurosurgeons may speak to the standard of care for cases stemming from misdiagnosis of brain tumors, mishaps in neurosurgical procedures, or strokes requiring surgical intervention. They can also be invaluable to many types of personal injury cases, including those involving cranial/spinal injuries, trauma related to motor vehicle accidents, and falls. The scope of a neurosurgeon expert witness’ case review, expert report, and/or testimony will largely depend on the particularities of the injuries sustained as well as the circumstances of the case. In this post, we examine the best ways to work with neurosurgery expert witnesses. When to Use a Neurosurgeon Expert WitnessNeurosurgical procedures can include spinal fusion, craniotomy, ventriculostomy, pallidotomy, trepanning, cranioplasty, anterior temporal lobectomy, laminectomy, thalamotomy, hemispherectomy, decompressive craniectomy, sympathectomy, bilateral cingulotomy, lobotomy, and more. Cranial InjuriesCranial (head) injuries can include an intracranial bleed (hemorrhage and/or hematoma), a concussion, or traumatic brain injury. For example, when a patient passes away after a delay in treating or diagnosing an intracranial hemorrhage. If the emergency room physician failed to perform the appropriate diagnostic tests, then of course, the first choice for an expert witness would be an emergency room physician to establish liability. Once liability is established, it is appropriate to retain a neurosurgeon to opine on causation and damages. A neurosurgeon can comment on whether or not an earlier diagnosis would have afforded the ability to evacuate the intracranial hemorrhage or hematoma. Spinal InjuriesSpinal injuries can include a spinal fracture or spinal surgery complications (e.g., paralysis or foot drop). In a case that involves surgical malpractice, neurosurgery expert witnesses can speak to the standard of care for the surgery itself, any deviations in how the surgery was performed, as well as causation and damages. Other instances of spinal complications that a neurosurgeon can opine on include tethered spinal cords and congenital defects. Stroke CasesThere are two types of stroke: (1) ischemic stroke, which is caused by a clot that develops in the brain, and (2) hemorrhagic stroke, which occurs when there is massive bleeding in the brain that causes pressure and resulting death of brain tissue. Neurosurgeons are not required to be consulted in every stroke case; a neurosurgeon expert witness may be appropriate for a hemorrhagic stroke when a large collection of blood collects underneath the skull forming a hematoma, or when ischemic strokes require a mechanical thrombectomy, a procedure that involves surgical intervention with a medical device that retrieves the clot to restore blood flow to the brain. Fall InjuriesNot all fall patients require neurosurgical evaluation, however, in cases where a plaintiff falls and develops intracranial bleeding (bleeding within the brain), a neurosurgeon may be consulted to see if surgical treatment of the bleed is required. Selecting the right expert witness for a fall case will depend on the injuries and imaging that was conducted at the scene. If a neurosurgeon was consulted, a neurosurgery expert can provide a critical perspective on your case. Motor Vehicle AccidentsMotor vehicle accidents are a great example of cases for which a neurosurgeon might not be the first expert witness that comes to mind, but could prove incredibly beneficial to the case. If a plaintiff in a motor vehicle accident case needs neurosurgical intervention as part of their clinical care, it would be helpful to have a neurosurgeon weigh in for damages, examine the care of the patient received, and comment on the patient’s prognosis. Another example could be a plaintiff who suffers from persistent lower back pain following a motor vehicle accident. In this case, a neurosurgery expert could perform an independent medical examination (IME) and confirm the plaintiff’s damages. Informed ConsentBecause the stakes of neurosurgery are much higher than in other specialties of medicine, informed consent is critical. Neurosurgeons treat very serious conditions and perform procedures that have a high risk of complications — complications that can happen in the absence of negligence. It is important for your neurosurgeon expert to have access to any documentation that details whether the treating surgeon discussed the benefits, risks, and alternatives of the procedure with the patient. If you’re able to prove that clear negligence occurred on the part of (1) the neurosurgeon during the surgery, (2) the hospital, or (3) the patient’s postoperative management team, then you have a strong case. When a Neurosurgeon Expert Witness Isn’t NecessaryKnowing when you don’t need a neurosurgeon to review or testify as an expert can be just as important as knowing when to use one. In many cases, attorneys may find orthopedic spine surgeon expert witnesses to be just as helpful as neurosurgery expert witnesses. Other than operating on the brain itself, in general, orthopedic surgeons perform many of the same procedures that neurosurgeons do when it comes to spine surgery. In a medical malpractice case, of course, the expert’s specialty is critical to the credibility of the testimony. But in certain personal injury cases, an expert orthopedic surgeon, or even an expert nurse, might be an excellent substitute for a neurosurgeon, particularly to discuss damages. The Cost of a Neurosurgeon Expert WitnessIf cost is a concern, retaining an orthopedic surgeon expert in lieu of a neurosurgeon might be the best move. Our 2018 Expert Witness Fee Report found that neurosurgery experts continue to be the most expensive expert witnesses in the country, with a “combined fee average” of $959.68. Neurosurgeons tend to be a bit more expensive than orthopedic surgeons (whose “combined fee average” comes out to $848.95). If your case involves a procedure that can only be performed by a neurosurgeon, however, it makes sense to spend a bit more money for the right expert in order to avoid the case going to trial. “When it comes to neurosurgery cases, you have to invest in retaining the most qualified expert,” says Zachary Barreto, Vice President of Strategic Research at Expert Institute. “Because neurosurgical injuries are so catastrophic, they are worth the most money spending. If your case is strong, you will make that money back in a hefty verdict or settlement.” Selecting the Most Qualified Neurosurgery ExpertUltimately, what separates one neurosurgeon’s expertise from another is the number of surgeries they have performed. Zachary Barreto, who has recruited neurosurgery experts for more than 200 medical malpractice and personal injury cases, encourages attorneys working on neurosurgery cases to look for neurosurgeon experts that have a track record of excellence performing the procedure at the heart of their case. “Sometimes, a neurosurgeon could be the head of a division at a prestigious medical center and not even see patients anymore, or only see them rarely. If you have the choice between a neurosurgeon with a prestigious title and less patient-facing time or a neurosurgeon who performs the operation in question one hundred times a month, then the surgeon who performs the procedure more is always the more qualified expert.” John Lomicky, Market Response Representative and former Associate Director of Strategic Research at Expert Institute, also cautions attorneys to make sure the neurosurgery expert they retain is actively practicing not just medicine, but the particular procedure involved in their case. “If the surgeon you are looking to retain has avoided a particular procedure, make sure that their avoidance is coherent with your theory of liability. Perhaps the procedure at issue is too risky for a given patient group. On the other hand, it could be that the surgeon does not specialize in that particular procedure.” According to Dr. Mariam Ghantous, a Medical Research Manager at Expert Institute with fellowship training in neuroscience and neuroimaging, an ideal neurosurgery expert witness would also be at least five years out of their fellowship training with experience doing medico-legal consulting. “I look for neurosurgery experts that have experience conducting case reviews and doing depositions so that I can give the attorney a combination of someone that is well-credentialed, academic, and familiar with how to comport themselves on the stand.” In the case that you are choosing between two neurosurgeons with the same amount of experience performing the surgery at issue, determining the more qualified surgeon will come down to their academic backgrounds — Did one of the experts attend an Ivy League medical school? Which expert had the more prestigious fellowship? Has one expert published more than the other? These markers of prestige will help establish an expert’s credibility to a judge and jury. Challenges When Recruiting NeurosurgeonsResearch veterans at Expert Institute admit that it’s no easy feat recruiting the perfect neurosurgery expert witness. The neurosurgical community is not as big as one might think. According to the American Association of Neurological Surgeons’ report on the neurosurgical workforce, there are only about 3,689 practicing, board-certified neurosurgeons that serve over 5,700 hospitals across the United States. In addition, because the neurosurgical community is so small, many neurosurgeons are not comfortable testifying against one another. “Often times, we’ll get in contact with a very qualified expert candidate, but once the candidate finds out who the defendant is, they say ‘I won’t go against that surgeon — we were in a fellowship program together,’ or ‘That surgeon directed my university program,’” recalls Zachary Barreto. As a result, finding neurosurgeons that are willing to engage in expert witness work involves contacting many top dogs in the field from across the country. John Lomicky also notes that neurosurgery is a highly litigious area. Many neurosurgery experts find themselves fatigued by the volume of cases, and may have even found themselves targets of suits. Selecting Relevant Medical RecordsSome neurosurgery cases can include thousands of pages of medical records, rendering the determination of the most appropriate records to send for a neurosurgeon expert to review a daunting task. Dr. Ghantous suggests focusing on the theory of liability. “If the liability is specifically related to the surgery, filter for the operative notes and anything leading up to the procedure, for example, if the patient was screened, or if the anesthesiologist said the patient was safe for surgery.” Dr. Tuan Nguyen, a Medical Research Associate at Expert Institute with residency training in psychiatry and research experience in cognitive neuroscience advises, “A neurosurgeon’s hourly rate is very high, so a good practice is to have a nurse review the records beforehand and remove any unnecessary pages. If your neurosurgeon expert has to sift through irrelevant records or duplicated data, that is going to cost you more time and money.” Dr. Nguyen also suggests that neurosurgeon experts start with the operative notes and discharge summary to get an overview of the patient’s condition. If you are unsure whether a neurosurgery case has merit and you are hesitant to hire an expert witness prematurely, Expert Institute offers medical record reviews and phone consultations with in-house MDs to screen for meritorious cases and determine the right expert(s) according to the case’s liability, causation, and damages. Establishing a Strong Attorney-Expert RelationshipIf you are considering retaining a neurosurgery expert witness, the most important aspect of any attorney-expert relationship is establishing a good rapport with your expert from the start. With neurosurgeons in particular, due to the nature of their work and the scarcity of experts in their field, they are incredibly busy. As a result, neurosurgeons are notoriously difficult to get in touch with, likely because they are inundated with patients. When you are working with them, make sure to use their time wisely. Always be prepared with the proper medical files and questions to avoid wasting time — it is both expensive for you and it causes strain in the relationship. And of course, as much as possible, clarify your expectations at the onset of your relationship to avoid any misunderstandings. The post An Attorney’s Guide To Finding, Retaining & Consulting Neurosurgery Expert Witnesses appeared first on The Expert Institute. An Attorney’s Guide To Finding, Retaining & Consulting Neurosurgery Expert Witnesses published first on https://medium.com/@SanAntonioAttorney via Tumblr An Attorney’s Guide To Finding, Retaining & Consulting Neurosurgery Expert Witnesses
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With over one million restaurants in the United States and an estimated $828 million in projected sales last year alone, the restaurant industry is big business. And thanks in no small part to reality television, there is no shortage of shows featuring chefs, restaurateurs, and other self-proclaimed experts of the industry touting their knowledge. But restaurant experts do more than make good television, they offer a seasoned perspective on the legal aspects associated with the business. From acting as a consultant in the preliminary stages of building a brand to offering expert testimony at a trial, there are a number of ways a restaurant expert can assist a business owner both before and throughout litigation. What Qualifies Someone as a Restaurant Expert?But what makes someone a restaurant expert? Typically, hands-on experience is the strongest indicator of a qualified restaurant expert. Those who really know the business have been in the business for a significant amount of time. Many have started from the ground up, with eight out of ten restaurant owners starting their careers in entry-level positions. That being said, there are various aspects of the restaurant industry – from the purchasing and planning to accounting, to day-to-day operations, to the actual preparation of food. As such, the exact qualifications depend on the type of restaurant expert sought. That is not to say that education is not an important factor as well. Degrees in hospitality, food services, restaurant management and operations, as well as various business and accounting degrees form an important foundation for any restaurant expert. Likewise, culinary institutions, courses, and seminars provide hands-on training and education for those specializing in food services and the culinary arts. Financial Planning and ProfitsOwning a restaurant is a huge undertaking, and the decision to open a restaurant should not be taken lightly. While many may take the leap and gamble by learning as they go, the safer bet is to hire an expert consultant. Experts in financial analytics can help determine whether the restaurant will be financially viable. Such data should include all startup costs and day-to-day overhead expenses as well as an estimated profit margin. A basic financial outline in the beginning with a knowledgeable consultant provides a reasonable financial game plan and takes the guesswork out of at least some of the variables that affect the business’ profits. Restaurant MarketingWith a financial model set and costs carefully budgeted, the next goal would be to increase profits. An expert consultant in restaurant design, branding, and marketing can help bring a restaurant to its greatest potential. Particularly in the age of social media, online branding and marketing is a huge aspect of the restaurant industry. After all, over 90% of customers read online reviews of restaurants. A restaurant’s advertising and online presence should be carefully fine-tuned by an expert to optimize its search engine exposure, and hopefully, its profitability. Health and Food Safety StandardsAll states have their own food safety laws and if not followed, a restaurant can be closed as fast as it opened. In New York, for example, the Health Department conducts unannounced inspections of the restaurant’s property and grades the business based on the number of violations. Things such as proper food handling, adequate food temperatures, personal hygiene of employees, and the control of vermin are just some of the issues that health inspectors are trained to look for. The various types of potential violations can seem overwhelming to both new and experienced restaurant owners. Experts in the various food safety laws and regulations can help ensure a restaurant is in full compliance of each and every possible rule. Liability Issues: A Restaurant Expert’s Day in CourtLike any other service industry dealing with the public, restaurants are susceptible to lawsuits filed by their patrons. The infamous 1993 lawsuit against McDonald’s for serving its coffee too hot, which earned its burned customer $2.86 million in damages, is an extreme example. But there are many other ways in which a restaurant can find itself in court. When patrons injure themselves on a restaurant’s property, they can allege that the business was negligent in creating an unsafe condition. Allegations of negligence can stem from allegedly dangerous staircases, slippery floors, or unsafe bathrooms. But like any lawsuit setting forth a negligence claim, plaintiffs need to show that the defendant restaurant breached the standard of care. In such cases, a restaurant safety expert would be critical in establishing the standard of care among reasonable restaurant professionals and whether or not the standard was breached. The restaurant industry is complex and subscribes to its own unique practices of conduct. When facing litigation, it is imperative to consult a qualified restaurant expert that can help navigate the many aspects of the business. The post The Importance of Restaurant Experts: Different Courses of Litigation appeared first on The Expert Institute. The Importance of Restaurant Experts: Different Courses of Litigation published first on https://medium.com/@SanAntonioAttorney via Tumblr The Importance of Restaurant Experts: Different Courses of Litigation My first job after completing my undergraduate work was in software engineering at a big technology company where we developed an operating system. After about a year, I had the opportunity to go to an industry event. I came back to the office with the notable realization that customers were people too. It may sound funny but, at the time, the voice of the customer was brought to us from sales, marketing, and product leadership. The event gave me the opportunity to meet users face-to-face. Suddenly, the “customer” wasn’t so anonymous to me. The “customer” had a face, a job, really great ideas, and a family to get home to at night. Industry events are a valuable way to develop relationships with peers and colleagues, network face-to-face, discuss the big challenges and opportunities, and experience the latest from notable vendors. In the days and weeks that follow all the excitement, there’s an opportunity to digest those “a-ha” moments and reflect on the common themes from the event. The 2019 Legal Marketing Association (LMA) conference in Atlanta was no exception. From the main stage to panel discussions and presentations to the exhibit hall, it was such a pleasure to learn alongside clients, partners, and colleagues. I discovered two key themes: (A) individuals are more powerful in numbers , and (B) the legal market continues to evolve and is becoming increasingly competitive. Individuals are More Powerful in Numbers The opening spotlight session on ABA Rule 5.4 included discussion about teamwork and collaboration and how these are often top weaknesses for many firms. As firms evolve from pyramid to pancake models, the practical application of collaboration becomes even more important. This theme continued with the keynote presented by Jennifer Dulski (Head of Groups & Community, Facebook). Twitter lit up with her new acronym: I.I.C.D.T.I.C.D.A. (if I can do this, I can do anything). We can do things (even when we’re afraid) by working towards a defined future that has a clear purpose. Ms. Dulski continued to talk through practical steps for making our personal brand a meaningful movement. One of my favorite parts was the discussion about influencer mapping and how to start something from an unexpected point to drive more efficient change. LMA members also had a chance to hear from our very own Mary Olson and Elena Cutri, speaking on Collaboration and Communication Skills, respectively. Collaboration relies on trust, communication, and change management. Our success depends on the ability to understand our stakeholders’ needs and adopting a mutually beneficial approach to achieve the desired results. As part of this work, we must understand our own communication blind spots to effectively communicate with partners, attorneys, lawyers, fee earners, IT, and executive leadership. Our work to continuously develop our communication skills will serve us well but also contribute to the success of the firm as a whole.
Legal market continues to evolve and relationships are the key to differentiation. Another key theme at this year’s event was the evolution of the legal industry as a whole and the critical work required to compete effectively. While the idea of evolution isn’t new to the legal industry, sessions included practical approaches for continuous improvement by staying one step ahead of client expectations. The General Counsel (GC) panel explored the ways law firms can improve to earn their business. Corporations are considering the breadth of capabilities in the market: in-house, traditional law firms and alternative legal service providers. Throughout the conversation, each of the panelists highlighted the value of having a deep relationship with their selected firms and how those relationships differentiate the firms with whom they choose to work. GCs want to work with attorneys who can help set the “goal posts”—effectively equipping them to present to the CFO—and truly partner on the success of their business. Further, the GC panel underlined a desire to better understand the meaningful and sustainable value offered by the firm. At one point in the discussion, the panelists talked about self-disruption. Ms. Dulski had discussed the same idea using different terminology: a bear hug. As individuals and as organizations, it’s important to embrace competition because it challenges us to see things from a different perspective and, ultimately, improve our craft. The GCs suggested that ALSPs represent another option for corporations as they search for savings and efficiency. They don’t define the end of law firms; there’s room for both options based on the operational strengths of each. This idea of using personal relationships as differentiation in a changing market was reinforced by Mo Bunnell. Mr. Bunnell helps professionals learn to develop business and often highlights that decisions can be made in the first five minutes of a conversation. He also states that people buy in to what they help create. Accordingly, we have five minutes to show clients that we know them and want to truly partner on the work to minimize their risk and drive their success. (No pressure!) The Big-4 have already adopted a model for business development by teaching their attorneys to “sell.” Law firms must help their professionals sell by equipping them to have authentic and personal relationships with their clients. Relationships and the role of technology. I’m a firm believer in the value of relationships. It’s no longer about being connected anymore. It’s about the value of that connection. We have all heard that people buy from people so an honest and thoughtful approach to personal connections and authentic caring goes much further than tracking an opportunity through a pipeline. There’s a lot of technology out there, even in just the marketing technology realm. (Check out Marketing Technology Landscape Supergraphic (2019): Martech 5000!) The good news is that the technology can help design a preferred client experience. The bad news is that we have a lot of options in that design and clients absolutely care about what that technology stack looks like because data is powerful and everyone needs to protect themselves and their business. Our clients want to help their businesses succeed and they want partners (and technology) that make it easier to do their work and get home to their families. I’m really proud to say that InterAction is full of great people who are authentic and smart. We don’t do technology just because it’s available—we partner with our clients to discern the best application of technology given the unique nature of professional services. Your client data can help empower your professionals to deliver a personalized and comprehensive service—one that is differentiated in meaningful ways. InterAction for Office 365® is the latest piece of our portfolio that makes this even easier—putting your CRM data in the right place at the right time, making it easier to contribute to and benefit from the data. If you didn’t have a chance to stop by our booth at LMA, I invite you to reach out for more information about this offering and the hybrid cloud model that delivers on the belief that your data is yours to protect as you choose. All of that said, thank you for allowing me to become part of the Legal Marketing community. It’s a privilege to have the opportunity to get to know you better and I hope to speak with you soon. My First LMA Conference: Relationships Matter published first on https://medium.com/@SanAntonioAttorney via Tumblr My First LMA Conference: Relationships Matter The National Practitioner Data Bank, a computer database of the United States Department of Health and Human Services that collects information about physicians, has released its annual report concerning medical malpractice payouts. The report, which analyzes medical malpractice claims from 2004 through 2018, highlights important trends in payout amounts throughout the United States. If the changes in 2018 are any indication, 2019 looks like it will also be a year of increased medical malpractice payout amounts throughout the country. Payout Totals and Averages Nationally and by StateAccording to the published report, approximately $4,031,987,700 was paid to plaintiffs in medical malpractice lawsuits in 2018. The figure represents a 2.91% increase from the previous year of 2017. Over the course of the 14-year span that the report covers, the total payout amount has varied, sometimes significantly. The total payout for medical malpractice claims in 2004 was the highest year recorded, totaling approximately $4.6 billion. The number steadily decreased over the next eight years, reaching a low in 2012 of approximately $3.5 billion. It increased consistently over the next six years, experiencing jumps by nearly $200 million each year from 2012 to 2014. The payouts were the result of settlements 96.5% of the time, with only 3.5% (and $142,569,750 in total payments) resulting from a court judgment. The average malpractice payment for 2018 was $348,065, in comparison to 2017, which averaged slightly less than $300,000. Unlike the total payout amount, the average payments experienced less fluctuation throughout the years and remained relatively steady. In 2014, the average malpractice amount was over $250,000 and hovered around the $300,000 mark for nine years. The average payout amounts, however, might not be the most accurate indicator. As the state-by-state breakdown shows, the average medical malpractice payouts by state vary greatly. New York topped the list, with an average payout of $446,461 in 2018. In New York, 1,535 claims were paid, totaling $685,317,000, and marking an 11% increase from the year prior. The second highest state average was in Pennsylvania, averaging at $405,978 based off 909 claims and a total of $369,034,250. Many states experienced astronomical payout increases over the previous year, such as Minnesota (101%), South Dakota (199%), and Vermont (a whooping 486% increase in 2018). Hawaii, Mississippi, Washington D.C., and North Dakota experienced the biggest average decreases, by 60%, 41%, 76%, and 81% respectively. Types of Medical Malpractice ClaimsIn 2018, medical errors related to diagnoses comprised 34.1% of malpractice actions, making it the most frequent claim. Malpractice in regard to surgery, 21.4% was the second-most alleged, with issues related to treatment following in a close third at 21.1%. These numbers are consistent with previous findings, as one study on the rates of medical malpractice lawsuits in the United States between 1992 and 2014 also found that misdiagnosis, surgical errors, and treatment-related mistakes are the most common types of claims. In terms of damages, 29.7% of the claims resulted in death, 18.7% resulted in major permanent injury, and 12.3% resulted from brain damage, quadriplegia, and other injuries that require lifelong care. Interestingly, the payouts for malpractice claims that allegedly caused death (which average about $386,317 per person) were not as high as brain damage claims, which earned the highest payouts, at $961,185. The Importance of Medical Malpractice ExpertsAny medical malpractice lawsuit needs an expert (or several) to either prove or rebut the allegations. At the basis of every malpractice suit is whether the defendant deviated from the acceptable standard of care and if so, whether such deviation caused the injuries. While the physician’s conduct is dependent upon the particularized facts of the case, the central issue when establishing the standard of care is whether the physician acted as a reasonable professional in their field would under the same or similar circumstances. An expert trained in the particular practice area that is the subject of the litigation is necessary to establish whether such standard was met. Overall, if the data for 2018 is any predictor, 2019 will likely see a relative increase in total medical malpractice payout amounts (while state-by-state numbers are not as easy to predict). As a whole, the United States is likely to continue an upward trend in terms of medical malpractice litigation, making the need for medical experts all the more pressing. The post Medical Malpractice Payout Report for 2018 appeared first on The Expert Institute. Medical Malpractice Payout Report for 2018 published first on https://medium.com/@SanAntonioAttorney via Tumblr Medical Malpractice Payout Report for 2018
In mid-December 2018, the Canadian government implemented Bill C-46, this new controversial legislation amended the Criminal Code by introducing new impaired driving regulations. As a result, Canada now has some of the most stringent and punitive impaired driving laws in the world. However, this legislation should not be celebrated, as it is overreaching, irresponsible, and will most likely be deemed unconstitutional in the near future. Make no mistake, I am in favor of a strong stance on impaired driving as it is a terrible offence that comes with great social costs, impacting the lives of many Canadians. But, while the intent behind Bill C-46 is commendable, it fails to strike a balance between civil rights and public safety, putting Canadians civil liberties in jeopardy.
Bill C-46 was enacted in response to Bill C-45 known as the “Cannabis Act”, which regulated and legalized marijuana in Canada. The Liberal government, which prides itself on operating within the confines of the Charter, stiff-armed this legislation through parliament in order to address attacks from the right and rising public concern over the potential increase in impaired driving as a result of the legalization of marijuana. The rushed nature of this Bill has resulted in it missing a number of crucial details, making it inconsistent with Charter values.
Under the new legislation, section 320.27 gives police the authority to conduct random and mandatory impaired driving tests without any reasonable suspicion that the driver is under the influence. Whereas previously under the law, police were only able to conduct impaired driving tests if they had a reasonable suspicion that the driver had been drinking. This ‘reasonable suspicion’ was based on various behavioral clues and observations, which included slurred speech, odors of alcohol, admission of consumption, and vehicle operation.
The new legislation has completely abolished the already low-threshold requirement of reasonable suspicion and gives law enforcement the ability to conduct a road side breath-test whenever they want. This new mandatory random breath-testing regime expands state power exponentially and contains provisions that will significantly impact section 8 (protection against unreasonable search and seizure) and 9 (the right not to be arbitrarily detained or imprisoned) of the Charter. This increase in police power will not come without costs, Canada has a history of police violence and abuse of power. Giving police a discretionary personal search power is analogous to the phenomenon of “carding” and this will disproportionately target marginalized groups, who are already subjected to discrimination by police1 Consequently, this could substantially increase the problem law-enforcement already has with racial profiling.
Bill C-46 exhibits striking similarities to Bill C-73 the Dangerous and Impaired Driving Act, which was condemned by the Public Safety Committee stating, “legal problems with the Bill far outweigh the potential salutary effects.” Impaired driving provisions are already among the most litigated in the Criminal Code and this new legislation will result in increased burdens on our judicial system, which is already severely overwhelmed. This may impair an accused individual’s section 11 Charter right to be tried within a reasonable amount of time and will leave victims of impaired driving seeking closure for extended durations of time.
Section 320.14 states that being impaired within two hours of driving is now also an offence. This can lead to some absurd convictions. For example, assume that I drove to a wine tasting event sober with the full intention of leaving my car overnight. I consume a few glasses of wine and suddenly the police show up and demand a breath-test because it is within two-hours since I last operated my vehicle. I could theoretically be charged with impaired driving. This reverses the burden of proof, treating an accused as guilty until proven innocent. This would require an accused to hire a toxicologist in order to corroborate their claims. It is up to the Crown to prove that an accused person committed a crime and is guilty, not up to the accused to prove that he or she is innocent.
This legislation is sloppy at best and although some Canadians may not take issue with these mandatory random breath-tests because their experiences with police are minimal, this legislation should not be accepted quietly. Safer roads are also not a guarantee, as harsher punishments do not always deter offenders2 Again, I do not think impaired driving should be tolerated in any respect, but Bill C-46 is inconsistent with our Charter values and is a slippery slope for increased state power. This legislation is not a justified limitation on our freedoms as outlined in section 1 of the Charter and thus it will most likely be deemed unconstitutional by the Supreme Court of Canada when it is inevitably challenged.
Footnotes
1 Anthony Laycock, “Bill C-46, and Act to amend the Criminal Code and to make consequential amendments to other Acts” (28 February 2018), online: The Criminal Lawyers Association < https://www.criminallawyers.ca/wp-content/uploads/2018/03/C46Submissions.pdf> [perma.cc/WC9V-V67R].
2 Ibid.
Bill C-46 Raises Many Red Flags - Impaired driving or impaired civil liberties? published first on https://medium.com/@SanAntonioAttorney via Tumblr Bill C-46 Raises Many Red Flags - Impaired driving or impaired civil liberties? In March 2019, federal prosecutors charged fifty people with participation in schemes to get their children admitted to top colleges and universities using fraud, bribery, and falsehoods. The group of people charged included well-known actors, CEOs, and fashion designers, as well as other wealthy individuals. Now, members of the same group charged with criminal behavior in the scandal are also facing civil lawsuits. Two class action lawsuits allege that both these parents and the colleges they engaged with denied others a fair chance to be accepted at or attend elite colleges and universities. The AllegationsOne of the class action lawsuits was filed by the parent of a student who was not admitted to several of the colleges involved in the scandal, despite the student’s 4.2 high school GPA. The suit alleges that the misbehavior of the charged parents resulted in students who had worked to earn a spot at these schools being denied the opportunity to attend. The other, filed by two Stanford University students, alleges that the colleges’ participation resulted in qualified students being denied the opportunity to attend these elite schools. The Stanford students also claim that Stanford’s participation in the scheme has devalued their own Stanford educations. The class action lawsuits claim that over one million people have been affected by the scandal, due to the number of colleges involved. What Happened?At the heart of the scandal is the claim that wealthy parents throughout the United States sought the help of Newport Beach businessman William Singer to get their children into the best colleges. Singer owns Edge College & Career Network and the Key Worldwide Foundation, and he allegedly claimed he could help students get into elite, highly-competitive colleges even if the student’s own record did not merit admission. The case also alleges that by routing payments through the Key Worldwide Foundation, Singer was able to disguise the scheme. Parents who paid Key Worldwide were able to write off those payments as tax-deductible donations to charity as well, despite the fact that the money was used not for charitable purposes but to bribe college administrators and other parties. Fraud in College AdmissionsThe college admissions bribery scandal is unique in its breadth – not only in the number of people and colleges involved, but also in the diversity of tactics used to carry it out. College admissions fraud has made headlines in other ways, however, including the fraud case against Corinthian Colleges, Inc. in the late 2000s. There, Corinthian was accused of using various deceptive tactics to acquire more federal funding, such as falsifying financial aid applications and manipulating student enrollment numbers, grades and job placement data. Currently, students who attended Corinthian’s schools are receiving assistance from the federal Department of Education, which has set aside money to assist in loan forgiveness. These students are also protected by a preliminary injunction issued in May 2018 in Manriquez v. DeVos, which prevents the Department of Education from collecting on direct loans held by certain borrowers. In the Corinthian cases, the primary target of civil litigation was Corinthian itself. In the recent class action lawsuits, however, both the colleges and the parents involved in the alleged scheme find themselves facing lawsuits. What to Expect from Expert WitnessesBecause the class action lawsuits arising from the college admissions bribery scandal are the first of their kind, it is difficult to extrapolate from earlier cases in order to determine which expert witnesses will likely be called upon in the cases. One potential source of contention is likely to be the methods used to determine whether and to what extent the students represented by the class actions were harmed by the behavior of the parents who bribed colleges and the colleges that accepted bribes. Questions about methodology appear in Manriquez v. DeVos, as well as in college admission cases like Fisher v. University of Texas at Austin and Gratz v. Bollinger. Although these class actions do not involve questions of race, as Fisher and Gratz did, they do involve complex questions of fitness for admission to a particular institution – questions that experts may well be asked to illuminate. The type of expert witnesses called upon will likely depend on the specific questions of methodology that are raised. In both class action cases, however, experts with experience in college admissions decision-making and the operations of college administrations, including athletic departments, may be asked to clarify key points about the bribery scheme and its effect on student admissions and recruitment. The post Understanding the College Admissions Cheating Scandal Lawsuits appeared first on The Expert Institute. Understanding the College Admissions Cheating Scandal Lawsuits published first on https://medium.com/@SanAntonioAttorney via Tumblr Understanding the College Admissions Cheating Scandal Lawsuits |
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