MC&A Newsletter
Volume XVI  :: December 2010

In this issue, we team up with Social Media for Kids®, experts on how to use technology and the internet safely - or "netiquette" and bring you tips on how parents and youngsters can use technology in a way that might help prevent legal issues associated with technology use - mainly sexting, cyberbullying and even predators. We also delve into betting on lawsuits, a case that sheds light on competency to stand trial and a Supreme Court case regarding vaccine manufacturers.

MC&A wishes you and your family a great holiday season and happy new year!




MANNERSIn MC&A Newsletter Volume V we explored sexting -- the sending of sexual messages and naked pictures to friends, girlfriends, and/or boyfriends over instant message, text, and/or email -- and the legal troubles young people have found themselves in as a result. Also, in MC&A Newsletter Volume XV we explored modern day bullying and its often deadly effects. Rather than continuously focus on the problem, we decided to spend time on the positive note of prevention. MC&A teamed up with Social Media for Kids®, experts on the issue of using technology in a safe manner, and below are some helpful tips for both parents and youngsters.

Tips for Parents
  • Find your child's profile, look it over and clean it up! Many kids have more than one online profile, so find out how many and where they are.
  • If children have information or pictures posted that tell too much about themselves, or anything that a predator could use to find them.
  • Check your child's online profiles regularly and click on their friends' profiles and the links that your child follows.
  • Follow the "Four Ps": Do not let children post anything publicly that parents, principals, predators or the police should not see.
  • Remind your child that everyone is looking, and what you post on the Internet stays there forever.
  • Let your child know that how they present themselves online may affect whether they get into college or get a job.
  • Make sure that your child uses the most restrictive privacy settings available on the social networking site where they have a personal profile.
Tips for Youngsters
  • Blur or morph your photos a bit so they will not be abused by cyberbullies or predators
  • What you post online is forever so think before you click
  • Do not do or say anything online you would not do or say offline
  • Protect your privacy and your friends' privacy too . . . get their okay before posting something about them or their picture online
  • Check what your friends are posting/saying online about you. Even if you are careful, they may not be and they may be putting you at risk
  • Do not give out information about yourself like your last name, your phone number, where you live, or where you go to school without first asking your parents
  • Never email a picture of yourself to strangers
  • If somebody says something to you, sends you something, or you see something that makes you uncomfortable, tell your parents; they will know what to do
  • Do not open emails, files or web pages that you get from people you don't really know or trust.
For more tips, visit Social Media for Kids® website at www.socialmediaforkids.com.
The Newest Investment: Betting on Lawsuits
betting lawsuitBanks, hedge funds and private investors are pouring money into legal claims in the hopes of getting a cut of big lawsuit payouts. The idea is quite simple: money is loaned to plaintiff attorneys to cover legal fees and costs and the lender charges interest until the plaintiff is able to pay it off.

While some of the loans assist in large cases, such as the lawsuits brought by September 11, 2001 ground zero workers, the majority of the investments are in smaller cases. In June 2010, New York lender Ardec Funding provided $45,000 to a lawyer in a case brought by the parents of a child that was brain damaged at birth. With that money, the lawyer was able to hire two doctors, a physical therapist and an economist to testify at trial, which lead to an award for the family of $510,000. Ardec also wins big, as the company is collecting interest at a rate of 24% until the loan is paid.

Although loans like Ardec's enable those with little funds to cover the high costs of litigation, they have become the basis of abuse in the court as well. In December 2009, a judge in Florida ordered an investment banker who instigated and funded a shareholder lawsuit against a large corporation to repay the defendant's legal expenses, stating that the case should never have gone to trial.

Investing in lawsuits can also hurt the plaintiff due to heightened interest rates -- approximately 15% a year, a percentage most states allow attorneys to bill a client. In some instances, the loan can end up costing more than the legal award. A woman in Pennsylvania won $169,000 in her personal injury case, but ended up owing the lenders $221,000, leaving her in the red.

While numerous plaintiffs gain the ability to give their cases a fighting chance in providing the funds necessary to contend with large corporate defendants, lenders may contribute to an already overwhelmed court system. There is fear that investors may begin creating lawsuits to increase their payoffs. A number of states have laws prohibiting such investments, but some - as in Massachusetts, South Carolina, Texas and Ohio -- have decided to eliminate those laws. UCLA law professor Stephen C. Yeazell believes this is a trend that is not likely to end anytime soon.

Sources: "Putting Money on Lawsuits, Investors Share in the Payouts," by Binyamin Appelbaum, November 14, 2010, The New York Times; "Hedge Funds Invest an Estimated $1B in Lawsuits, Earn as Much as 24% in Interest," by Debra Cassens Weiss, November 15, 2010, ABAJournal.com; "On the Burgeoning Industry of Lending for Litigation," by Ashby Jones, November 15, 2010, The Wall Street Journal.
Schizophrenic Accused of Murder Deemed Unfit for Trial
tarloffDavid Tarloff, a schizophrenic accused of killing a psychiatrist with a meat cleaver in New York, was found mentally unfit to stand trial for murder during the second week of jury selection. Two court-appointed psychiatrists examined Tarloff and based upon their findings, New York Supreme Court Judge Edward J. McLoughlin declared a mistrial.

Judge McLoughlin ordered the psychological examinations after Tarloff refused to leave his holding cell to attend jury selection. When Tarloff was returned to Bellevue Hospital -- where he had been held since his arrest -- he stripped down naked and ran around the hospital's psychiatric ward. During his court appointed psychiatric examination, Tarloff stopped speaking, and then began talking to himself.

Bryan Konoski, Tarloff's defense attorney, said that the stress of the trial caused his psychosis. Konoski stated, "I think it's possible that he'll be found fit enough to return to court . . . but I'm not sure he'll ever be fit enough to withstand the stresses of a full murder trial."

According to his statements to police, on February 12, 2008, Tarloff headed to Kathryn Faughey's Upper East Side office to rob her colleague, Dr. Kent Shinbach. He claimed that he planned to rob Dr. Shinbach so he could pay to take his mother out of a nursing home in Queens and move to Hawaii. However, upon reaching the doctors' offices, Tarloff ran into Faughey. Tarloff slashed her fifteen times with a meat cleaver because he believed she was going to kill him.

This is not the first time that Tarloff has been ruled unfit for trial. He has had numerous outbursts in court, which prompted a judge in June 2008 to order he take medication for his schizophrenia. Four months after that ruling, Tarloff was declared mentally unfit. Since that time, doctors determined that his condition had improved enough for him to stand trial.

To be competent for trial, Tarloff must be able to understand the court proceedings and be able to assist in his own defense. The rule of incompetency stems from the 1960 U.S. Supreme Court case Dusky v. United States, which requires that a defendant have both a rational and factual understanding of the charges and proceedings and a sufficient present ability to consult with his lawyer with a reasonable degree of understanding. As long as Tarloff is considered unfit for trial, Tarloff cannot be tried and will remain in a state hospital until doctors determine he has regained his competency.

Tarloff's attorneys planned to claim the defense of insanity at trial, which is not the same as fitness to stand trial. To be found legally insane, the jury need only find that Tarloff was so mentally ill at the time he committed the crime that he did not know what he was doing was wrong. Unlike the insanity defense, competency to stand trial is dependant upon Tarloff's mental state at the time of trial. For now, it appears Tarloff will not need to worry about any defense in the near future.

Other famous defendants who underwent competency hearings to determine if they were fit to stand trial include Ted Bundy and Theodore Kaczynski, also known as the Unabomber. Bundy was evaluated by three psychiatrists after his attorneys questioned his competency. Two of the psychiatrists determined that he was competent, with the third finding Bundy competent because he demanded such a finding and looked and sounded competent. The judge in Kaczynski's case requested a psychiatric evaluation after Kaczynski had a dispute with lawyers about his defense, thereby requesting that he be allowed to represent himself, and then attempted suicide. The psychiatrist who evaluated Kaczynski determined that he was competent to stand trial despite suffering from paranoid schizophrenia, because he understood the nature of his charges and was able to assist his attorneys in his defense, which are the key elements of competency.

Sources: "Man Ruled Unfit for Trial in NYC Therapist Slaying," by Jennifer Peltz, November 9, 2010, The Washington Post; "Defendant Unfit for Trial in Killing of Psychologist," by John Eligon, October 18, 2010, The New York Times; "David Tarloff Killed NYC Psychiatrist, Relying on Insanity Defense as Jury Selection Begins," by Caroline Black, October 14, 2010, CBSNews.com; "On Metaphors, Mirrors, and Murders: Theodore Bundy and the Rule of Law," by Michael Mello, NYU Review of Law and Social Change, Vol. XVIII: 887, 1991; "Ted Kaczynski: The Unabomber," by Ted Ottley, www.trutv.com
Vaccinations on Trial
syringeOn October 12, 2010, the U.S. Supreme Court heard oral argument in Bruesewitz v. Wyeth on whether vaccine manufacturers should be protected from lawsuits brought by the family of those injured from the vaccines.

The case was brought by the parents of 18-year-old Hannah Bruesewitz. At six months of age, Bruesewitz began to suffer seizures and later suffered from developmental problems as a result of a discontinued D.T.P. vaccine that protected against diphtheria, pertussis and tetanus. According to the Bruesewitz's claim, the manufacturers of the vaccine (Wyeth -- now owned by Pfizer) knew there was a safer version of the vaccination and never produced it.

At the heart of the issue is Section 22(b)(1) of the 1986 National Childhood Vaccine Injury Act of 1986, which protects vaccine manufacturers from liability for certain kinds of injury. According to the Act, product liability claims for vaccinations are heard in an alternative system known as "vaccine court" and manufacturers are deemed immune from liability "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning." The reasoning behind Section 22(b)(1) is to encourage drug manufacturers to provide vaccinations to children.

The vaccine court rejected the Bruesewitz's claim, which is why they are now seeking the right to sue the drug manufacturer directly. The U.S. Court of Appeals for the 3rd Circuit in Philadelphia also ruled against the Bruesewitz's, stating that Section 22(b)(1) barred the claim. Thus far, only the Georgia Supreme Court has ruled that a family can sue in a regular court for vaccination cases.

A decision in this case will certainly have an effect on pending lawsuits that claim childhood vaccinations are causally linked to autism. While there is no scientific support for such a connection, numerous families have brought suits seeking remuneration for their children's autism. Indeed, nearly 75% of claims brought in vaccine court are related to autism. However, vaccine court judges have held that such claims do not merit compensation. Still, if the Supreme Court rules in favor of the Bruesewitz family, drug manufacturers will have to answer to many more families in the courtroom.

Sources: "Supreme Court to Consider Vaccine Case," by Barry Meier, October 11, 2010, The New York Times; "Supreme Court to hear case about vaccine side effects," March 8, 2010, USA Today
MC&A is firmly committed to our valued clientele.  We provide services in the areas of litigation, criminal law, and general corporate and business law.

For more information about how we can be of service to you, call us at 212.551.3617 or send an email to info@charleslawfirm.com.

Midwin Charles & Associates LLC
230 Park Avenue, Suite 1000
New York, New York 10169

© 2010 Midwin Charles & Associates LLC
In This Issue
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Midwin Charles recently appeared on The FOX Business Network's, Nightly Scoreboard with David Asman and HLN's Showbiz Tonight to discuss legal and pop culture issues of the day.

Midwin Charles spoke at a Continuing Legal Education seminar on Building a Successful Small Firm Practice: Taking Steps to Achieve Success Conference, hosted by the New York State Bar Association in New York on November 8, 2010.
For more information, go to www.nysba.org.

Midwin Charles was interviewed by she-blogs.com. Read the interview here: http://she-blogs.com/blog/?p=8029

Midwin Charles gave a presentation on criminal investigations at the International Bar Association 2010 Annual Meeting in Vancouver, British Columbia on October 5, 2010. For more information, go to www.ibanet.org.

MC&A is proud to have sponsored the Corporate Counsel Women of Color's Sixth Annual Career Strategies Conference which took place in New York, October 6-8, 2010. For more information, go to www.ccwomenofcolor.org.
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