Bierlaw Blog
Published on
11/02/09 02:13PM
by
Bruce A. Bierhans
Recently, I concluded a case in which I represented a financial adviser for one of the largest brokerage firms in the country against the firm itself. The firm was attempting to enforce a Non Compete clause in the advisers' employment contract. In fact, the adviser had left the firm because she felt she was being forced to sell products that benefitted the firm that were not necessarily "suitable" for the client/investor, and we defended the case on that basis. I have had many similar cases in which I have represented advisers.
It appears as if the "suitabilty" argument, as well as issues relating to the fiduciary obligations of advisers to their clients is finally being recognized by the industry, including FINRA (Financial Industry Regulatory Authority). FINRA reports that this year, investors won 45% of the decided arbitration cases, up from 37% in 2007. They further reported that "suitability" claims "predominated" in the years filings. Simply, suitability means that the fiduciary is required to make recommendations based upon the objectives and risk tolerance of the investor. As we argued in the above case, if the fiduciary is selling or recommending a product because it might impact his or her compensation, suitability is taking a back seat to the priorities of the brokerage house and the adviser. A recent example of these types of cases include the "auction rate securites debacle" (about which I have written in the past).
There are currently many debates taking place within the industry regarding application of the suitability standard and what agency within the industry should enforce the standard. As stated by the Texas securities commissioner. "We have to make sure that from a policy perspective that we don't allow capitalism to destroy itself."
As an indivudual investor, be your own watchdog! Ask your adviser questions. If you don't know why an investment is being recommended, inquire. Ask your lawyer or accountant for advice , but don't be quiet or passive. If you believe you were placed in an investment that was not suitable for you, take action. You are ultimately, your own best advocate!
Bruce A. Bierhans
Published on
09/13/09 12:33PM
by
Bruce A. Bierhans
While reading the Sunday AM papers and blogs, I started thinking about timely legal and newsworthy topics to cover in coming weeks.
One article discussed how our economy has changed for years to come, along with our own attitudes towards debt, financial planning and other economic/lifestyle issues. Topics I have covered in the past, including the fiduciary responsibilities of your financial advisers, elder financial fraud and mortgage modification certainly warrant further exploration.
Clearly, healthcare is the topic of the moment. As someone that has litigated many medical negligence cases, but has also lectured nationally to physicians on litigation related issues, I am very familiar with many of the arguments on both sides; particularly those related to malpractice reform. In addition, the work I have done on behalf of OCHS helps give me additional insight into this complex and controversial topic.
Along with changes in our economy come changes in business, as well as job movement on the part of employees. I will continue to attempt to cover issues related to business survival tactics, as well as employer/employee issues.
When individuals suffer a personal injury as the result of negligence, they are often confronted by an insurance industry that has the deck stacked in its' favor. I will continue to educate consumers about their basic rights when they are accident victims.
Of course, as always, new topics will presnt opportunities for discussion. There is always a new scammer on the horizon waiting to take advantage of the uninformed, uneducated, elderly or gullible victim. I'll be watching for those new scams of the day.
If any readers have any topics they would like me to cover, feel free to weigh in.
Bruce A. Bierhans
Published on
06/10/09 10:43AM
by
Bruce A. Bierhans
Over the years, I have had many cases and inquiries involving alleged odors that caused illness. Examples include varnishes on floors, glues under carpeting and even methane gas in a condominium resulting from improper placement of a septic system.
This week, Mass. Lawyers Weekly reports that the 1st U.S Circuit Court of Appeals has ruled that a permeating odor could constitute "physical injury to property". While LW reports that this could have a significant impact upon liability carriers that may now have to defend or provide coverage for theses cases, it may also provide relief to homeowners or other persons that may have suffered injury or damage to property as a result of such conditions.
In 2000, a company hired Suffolk Construction as a general contractor to make improvements to office space. Suffolk contracted with a flooring company to install tile and carpet. When employees returned in 2001, they noticed offensive odors, and some complained of headaches. When the sub refused to redo the job, Suffolk had to pay 1.4mill to remediate the problem. Suffolk then sued the sub and a US Magistrate initially ruled that the insurer had no duty to defend because of "exclusions" in the underlying policy of the sub. The appellate court reversed, holding that "odor can constitute physical injury to property" under Massachusetts law, and that the remediation, which included bead blasting of the floor could be interpreted as "physical injury."
I have often had to fight for consumers against insurance companies that try to hide behind the multiple exclusions often found in homeowner insurance policies. Although this is a 1st circuit federal court case, it gives a good indication as to how our state appeals courts may rule in similar circumstances. A potential victory for the consumer down the road; and one that doesn't leave a "bad taste" in your mouth.
Bruce Bierhans
Published on
06/10/09 10:41AM
by
Bruce A. Bierhans
Very often, a homeowner recieves a variance for an addition, or some other structural change, and then sets about the process of obtaining other approvals such as those from the Planning Board or Board of Health. Sometimes, particularly if there are conservation issues, the process can take more than a year.
However, Mass. Lawyers Weekly reports that the Mass. SJC has ruled that a property owners failure to record his variance within one year of its' issuance prohibited him from moving forward.
The plaintiff owned a 14 acre parcel in Dracut. He wanted to subdivide the lot and the smaller lot required a frontage variance. He didn't obtain approvals from the Planning Board, Board of Health and the Conservation Commission until after a year had elapsed since the grant of the variance. The building inspector then refused to issue a building permit.
The court, agreeing with a decision of a Land Court judge stated "...a variance does not take effect until it is recorded and that the recording of a variance within one year of its grant is necessary to exercise it...The variance could not become operative, and by implication, could not be exercised, until it was recorded."
For property owners that undertake this process without counsel, this is a very important decision.
Bruce A. Bierhans
Published on
06/10/09 10:40AM
by
Bruce A. Bierhans
With Managed Competition now here in Mass; and liability carrier commercials flooding the airwaves, I thought a little motor vehicle insurance primer was in order.
In this economy, I find that many injured clients have inadequate liability coverage to compensate them for their injuries. In Mass. your motor vehicle coverage is intended to protect your hard earned assets if you or a family member injures another person, and to compensate you if you are injured by a driver who has inadequate or minimal coverage.
Coverage designed to protect you and your family as a result of injuries caused to another is called "bodily injury (BI) to others", or "optional bodily injury to others". State law requires you to carry minimum coverage of $20,000/$40,000, but you should purchase additional coverage through the optional component of the policy of at least $100,000/$300,000 ($50,000/$100,000 and $250,000/$500,000 are also available). Also, you should obtain coverage for "bodily injury caused by an underinsured/uninsured auto (UM)" or optional coverage of the same name. A vehicle is underinsured if the value of your claim exceeds the amount of bodily injury coverage carried by the at-fault driver. For example, if there is $20,000 available per injured person, and your claim is worth $100,000, the at fault vehicle is underinsured by $80,000. This is where carrying adequate uninsured/underinsured coverage becomes crucial.
To be adequately protected in all events, everyone should carry BI coverage to others, as well as UM coverage for themselves of at least $100,000/$300,000. If you or a household member seriously injure another person and only possess minimum coverage, your personal assets could be attached to satisfy a judgment that exceeds policy limits. Conversely, if you are injured and possess minimum UM coverage, your recovery will be limited to the actual amount of coverage held, even if the value of the claim exceeds that coverage. In the above $100,ooo example, you would have been able to recover that $80,000 above the $20,000 from your own UM coverage. Without it, you would be limited to a recovery of $20,000 only.
The additional cost involved in purchasing this extra coverage is less than many people believe. Also, I routinely find that many people have never had a discussion with their insurance agents about these coverage issues. "My agent never told me" is a common refrain. Talk to your agent or attorney about these issues before you place your coverage. After the accident, it's too late!
Protect yourself and drive safely.
Bruce Bierhans
Published on
04/21/09 12:36PM
by
Bruce A. Bierhans
Disclosure: My office represents the Drummer Cove Neighborhood Association. The Association is opposing the development of a three unit condominium in Wellfleet with one one bedroom "affordable" unit in an area of Drummer Cove. The proposed structure would be within 41 feet of the coastal bank.
Last week, in an article in the Cape Cod Times, the reporter described the standard of review applicable to the local Zoning Board of Appeals. The article also characterized the issue as a "feud". The following letter was sent to the editor in an attempt to clarify certain important points. Because of it's length, it may or may not be published by the paper. Although I do not usually use this forum to comment on specific ongoing cases; I feel that this is an important issue for homeowners and communities confronting similar issues.
To The Editor:
I represent the Drummer Cove Neighborhood Association regarding the 40B project proposed by Edward and Dorothy Zelinsky.
This matter is about much more that a "neighborhood feud". Further, the ZBA standard of review is not nearly as onerous as that portrayed by Mr. Fraser in his article of April 18th.
According to the regulations, in the event that the ZBA denies a 40B application, and that denial is appealed to the Housing Appeals Committee, the ZBA must establish that, "In the case of a denial, the Board shall have the burden of proving first, that there is a valid health, safety, environmental, design, open space or other Local Concern which supports such denial, and then, that such Local Concern outweighs the Housing Need."
The proposed project, a mere 41 feet from the Coastal bank, will provide Wellfleet with only one affordable unit out of three, a one bedroom condominium. This one unit will not keep a young family with children in our community nor will it make a dent in Wellfleets affordable housing stock ( the town does have a number of other 40B projects in the works). However, according to the regulations, the ZBA is able to balance the benefits of this one unit against the well established Wellfleet "Local Concern" for preservation of open space, conservancy, and the protection of all that makes this community wonderful and unique.
Whether or not this project is retaliation by the Zelinskys against the ZBA for prior rulings, the town or their neighbors is not the issue. The goal of 40B is to be applauded and Wellfleet has and is making strides in providing affordable housing. However, the statute does not say that you can site a 40B unit anywhere and ignore the impact upon the community and it's history of environmental protection.
Bruce Bierhans
Published on
04/05/09 12:01PM
by
Bruce A. Bierhans
Do you know what IME stands for? How about "Independant Medical Exam". When it comes to car accidents and insurer requested IME's, falser words were never spoken.
If you have had a car accident, and are receiving No Fault PIP (Personal Injury Protection) benefits, your own carrier has a right to schedule an IME. This is because the carrier only has to pay for reasonable and necessary medical expenses. Beginning to get the picture yet? Your carrier schedules the IME and two weeks later you get a letter saying your carrier will no longer pay for your medical bills. But, you say; my doctor says I need three weeks of additional PT . Tough, your carrier says, our IME doc says you're fully recovered. Now, your lawyer has to not only fight against the carrier for the at fault operator on your bodily injury claim, but has to fight with your own carrier to get your medical bills paid.
How does this happen? Interestingly, the NY Times had a piece this week on IME docs doing workers compensation exams in New York. As one doc said" If you did a truly pure report, you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want, or you're in Florida. THAT'S THE GAME BABY."
Another doc said, "basically, if you haven't murdered anyone and you have a medical license, you get certified. It's a nice way to semi-retire."
I could write a book about fraudulent IMEs I have seen in my practice in Massachusetts. For example, there is a well known IME doc on the South Shore that I prevailed against in a medical negligence case. The doc paralyzed my client during back surgery. He no longer sees patients, but does insurer IMEs all day long. I had a case recently where another well known IME doc said in a report that a herniated disc shown on an MRI was not really a herniation, but a mere sprain. This happens is cases every day. Most of these docs are retired and now do nothing but these "independant" exams for insurers. They get paid by the insurer. Think they're going to be "independant" and write a true and accurate report??? If you do, I have some PAVE PAWS land you might want to buy for development purposes.
This is another reason why it is so important to have competent and experienced counsel when you have been injured. We know who the scam docs are. We have another word for them. Suffice it to say it rhymes with "bore". We know how to protect you when you go to an IME. We know how to fight the carrier when an IME is written that is nonsense. We almost always have your own physician on our side because it is your doc that knows what you need; not an IME guy that examined you for 5 minutes and then cranked out a 15 page canned report. Plus, of course, the carrier is attempting to avoid paying your physician for their legitimate services.
Stay away from the lawyers on TV. They're just marketers and all they do is send you to another attorney. Make sure your lawyer is experienced, knows his or her way around a courtroom, and will fight for your rights when the "well intentioned" insurance companies try to deprive you of those rights.
Bruce Bierhans
Published on
04/05/09 11:59AM
by
Bruce A. Bierhans
An update on my recent blog regarding the Nursing Home case I tried in Dedham three weeks ago. You may recall that the Nursing Home sued the sons , who had received a conveyance of the family home three years before the father required nursing home care. The facility argued that the conveyance was fraudulent and sought to set it aside.
The trial judges decision issued this morning. The court first ruled that the contract claim against the father for services received was legitimate. This issue had previously been decided in favor of the facility and we knew this was the likely result on that Count.
HOWEVER, the court also ruled that the facility FAILED to meet their burden of proving fraudulent intent regarding the earlier transfer. This was the primary issue that was tried. As the court stated, "The mere transfer of property between elderly parents and their children, without more, does not establish a fraudulent intent. The nursing home has failed to meet its burden."
Of course, the nursing home can appeal. But...it's always a nice day when the system works for the little guy!
Published on
03/22/09 12:52PM
by
Bruce A. Bierhans
CAUTION: TRUE STORY AHEAD! In 2003, a mother and father in Stoughton conveyed their modest home to their two sons and retained a "life estate" (a right to live in the home until their deaths). The father, then in his mid sixties, had diabetes, but was otherwise healthy and engaged in his usual daily activities. He was a retired machinist from Portugal that had worked hard his entire life. The family was a bit behind on their taxes, but otherwise had no debts. When the home was transferred, one son moved into the house and became responsible for it's care and upkeep and also paid the mortgage.
Three years later, in 2006, the father had an acute diabetic episode and had half of one leg amputated. He had to enter a nursing home.
At the time of admission, an Admission Agreement was signed which made the father responsible for his nursing home bills and made his son "responsible" for using the FATHERS assets to pay those bills. However, the sons assets did not have be used to pay those bills, nor, the Agreement said, could the son be held responsible for those bills. Remember, by that time, the son had owned the home for almost three years. Ultimately, some bills were paid by Medicare and there ended up being a dispute as to whether or not MassHealth would cover some of the fathers bills. As a result, there ended up being a disputed bill in excess of 100k before the nursing home booted the (one legged) father out of the facility.
Guess what? In 2007, the nursing home sued the mother, father and both sons, alleging that the 2003 transfer of the home was a "fraudulent conveyance" which should be reversed so that the house could then be attached by the nursing home and the sale proceeds used to pay the bill. I represented that family and defended by arguing that the transfer was a perfectly legitimate transfer when made and that there was no expectation, at that time, that the father would require nursing home care three years later.
We completed the trial of the matter this week in Dedham. After the close of evidence, the trial judged dismissed some of the nursing homes case, but has not yet ruled on the "fraudulent conveyance" claims of the nursing home.
This case, and cases like it, should be a great cause for concern. This transfer was similar to thousands of such transfers that occur every day between family members as legitimate "estate planning" measures. Now; not only do families have to contend with the Medicare "look back" period, but also have to be afraid of whether or not a nursing home will prey upon them and allege that what they did was a "fraud." Defending such an action also results in the family incurring thousands of dollars in unanticipated legal fees. Even though I reduced my fees for this family, the defense and trial have been time consuming and the costs have been substantial.
I will report on the results when received. However, this case illustrates how, more than ever, planning for the future by families should occur well before a problem arises or health care concerns exist. By then; it may be too late.
Bruce A. Bierhans
Published on
02/16/09 11:46AM
by
Bruce A. Bierhans
Dear President Obama: I know it's Presidents Day and you have an awful lot on your plate. However, I hear you're going to address the mortgage mess this week after you sign the little stimulus package. By the way; I'm going to go shopping for solar panels today; got to do something to help.
Anyway; I'm not a Harvard educated lawyer or economist, so you might want to stop here. I had to work as an aide in the Massachusetts Senate during the day and go to Suffolk Law School at night to pay for my education. I'm just one of those trial lawyers that everyone loves to hate. I represent consumers and small businesses against those more powerful. Have done it for 27 years. Hey; someone has to do it! But; if you want to hear me out, here goes.
I've sat in conference rooms and taken depositions under oath of the loan officers and mortgage brokers. I've heard about the failure to underwrite, the "boiler rooms" where brokers were taught how to deceive homeowners, how to "up" the amount of a mortgage with credit cards and other debts rolled into the mortgages, the promises of swift refinances, the "income falsification" on loan applications, the broker commissions of 15k paid out at closings; I've heard it all. My take. All these people should be held accountable and held criminally responsible where appropriate. They have destroyed the lives of many and profited at the same time. Without accountability, our civil justice sysyem fails. Seeing some perp walks will make Americans feel better and know that something is being done.
I know, you want me to get to the mortgage part. Sorry, I do hate writing long letters; but I had to vent. OK, here goes:
a) Reduce interest rates. You know that all those rates after the 6% margins on LIBOR kicked in; and the choices on the Pick a Payment Option ARMS were simply a fraud and a facade to begin with. Didn't you see the guy on 60 Minutes last night say they all knew it was a fraud? All subprime interest rates should be reduced to market and all loans should be at fixed rates, or the old conventional 3 or 5 year ARMS with reasonable caps. Some people know they'll sell their homes in 3-5 years and should be able to get an ARM based upon their circumstances.
b) Reduce principal. Not doable you might say. Why? Housing prices inflated because of this fraudulent easy money in the first place. Principle should be reduced to 80-85% of actual appraised value (remember, many of the subprime loans were based upon fraudulent appraisals in the first place) . This would also give many a little cushion and the opportunity to stuggle a bit to pay off money they may own on an equity loan. You want to have the government insure the difference between the old principle and the new principle. Why? Let the banks that made the stupid decisions absorb these losses. Of course, shareholders may suffer, but all our retirement accounts have already tanked anyway. Remember Charles Darwin?? Let the strong survive!
c) Bankruptcy: Let bankruptcy court judges have the authority to modify mortgage loans. I know some damn smart bankruptcy judges and have a few of these cases coming up. Can't wait to get the loan officers on the witness stands. I know one mortgage broker at a place formerly known as Hyannis Mortgage (now defunct, of course) that lived off of the Pick a Payment loans and thought they were a great idea. The judge will love to hear her explanations.
d) Bring sound underwriting back into the marketplace. I know regulations were already in place that could have avoided this disaster. However, fill the potholes and make mortgage lending simple and transparent and stop the fraud. Another scam will come around tomorrow, but do what you can to stop this one.
In summary, Mr. President, you need to restore confidence in our financial system, punish the wrongdoers, and give those that qualify a chance to get back on there feet. I know this isn't perfect and your economists will likely rip my ideas to threads, but what do I know. I'm just in the trenches trying to help some good folks try to dig their way out.
Want to hear my ideas about the automakers??
Respectfully Yours,
Bruce A. Bierhans
Published on
02/15/09 09:24AM
by
Bruce A. Bierhans
I was in court the other day in Boston for oral argument in one of our predatory lending cases. I joked with the defense lawyer and asked if he knew who his client was today. When the case started, he represented Ameriquest Mortgage, which made the loan, Ameriquest Servicing, which serviced the loan, and Washington Mutual, who had purchased the loan. Sounds pretty easy, right?
Well...not so fast. Then, Citibank bought the servicing arm of Ameriquest and was servicing the loan, and Washington Mutual went bankrupt and JP Morgan then purchased some assets of Washington Mutual. To make matters even more complicated, if WAMU was the Trustee of a Securitized Trust, the Trust Fund still exists independant of WAMUS' failure. I'm sure I've lost you by now, and it also makes my eyes roll up in my head. However, what it does reflect is how difficult it is for the federal government, not to mention the consumer trying to modify their loans, to wrap their arms around the current situation and try to bring some sanity and order to the modification process. "Don't try this at home" as they say.
In courts nationwide, including bankruptcy court, lawyers are beginning to successfully challenge foreclosures by demanding information identifying the true "holders" or owners of mortgages. Where this cannot be done, cases brought by banks to foreclose are being dismissed. We intend to make this "holder" challenge in every case that we have.
The securitization process, i.e the bundling of loans, both good and bad, into investment packages sold throughout the world, is what has brought the international financial community to it's knees. They made the process so complex, even they didn't understand it. What a shame that their own arrogance and greed may turn out to be the tool that consumers and courts can use against them.
Published on
01/04/09 02:27PM
by
Bruce A. Bierhans
Believe me...when I wrote my last post on Nursing Homes on my Cape Cod Barrister blog at capeCod Today, I had no idea that nursing home grading would be the headline story in the Cape Cod Times just a few days later. Perhaps my timing is so good, I ought to buy a lottery ticket!
In any event, what do we learn from the study conducted by the HHS Centers for Medicare and Medicaid Services?? As for Barnstable County, we learn that 45% of homes were ranked "above average" and 33% were rated "below average". On Cape Cod, 17% of the homes received the lowest coveted (tongue planted firmly in cheek) one star rating, compared with 14% statewide. Although Norfolk County received the lowest percentage of one star ratings, that happens to be the county where many of my cases to date have originated. In this county, how do you feel if your Mom or Dad is in one of the one star facilities or one of the 33% that were rated below average. Probably not warm and fuzzy.
What do these statistics tell us. Not much really, other than the fact that, as I have stated previously, due diligence and monitoring your family members care is paramount. Tragedies can occur in the best and worst of homes. For example, let me give you a brief rundown of the types of cases we have handled on behalf of client families. These will give you a beginning primer on what to look out for. Some of these cases have occurred in homes that were high end and sparkling.
a) Development of bed sores and other ulcerative conditions and the failure to treat the conditions when they occur;
b) Falls, frequently multiple falls, resulting in serious injury or death. This is the most common type of case we have handled. Patients "at risk for falls" are supposed to be assessed upon admission and closely monitored thereafter, with assistive devices, i.e lap buddies with wheelchairs, to prevent falls.
c) Failure to administer medication or actual overdosing of the patient. Again, a situation that results in serious injury or death;
d) Assault and Battery and theft. Yes, patients can be physically and emotionally abused behind closed doors. In addition, we have seen multiple cases where there is a theft of personal property.
Nursing homes are subject to a myriad of state and federal regulation because of their receipt of federal and state funds. The maze of regulations and payment options can be confusing to the best and the brightest. However, your first course of action is to be informed and to be an aggressive advocate for your family member. I will talk in later posts about some of these issues with more specificity.
Published on
11/11/08 11:20AM
by
Bruce A. Bierhans
The Cape Cod times reported today that a man was injured by falling granite at a granite store in Hyannis. The man, believed to be a customer rather than an employee, sustained a "crushing" injury to his lower left leg. The granite piece was estimated to weigh between 800-1,000 pounds.
A horrible accident to be sure. Were the man an employee, any recovery would be limited to his exclusive remedies under the massachusetts Workers Compensation laws. However; if a customer, he has all remedies available to him in the event that the store owner was, in any way, negligent in maintaining the property. One certainly has to wonder how a 1,000 piece of granite falls on a customer if it were properly secured. The gentleman would be entitled to compensation for pain and suffering, medical expenses, lost wages and future loss of earnings. His family may be entitled to damages, as well, depending upon the nature of his disability.
If you have any questions regarding your rights in premises liability or other serious personal injury matters, do not hesitate to contact our office
Published on
11/11/08 11:00AM
by
Bruce A. Bierhans
Today, Citibank announced that it will endeavor to "modify" mortgage loans for those homeowners that are current but at risk for falling behind. The program includes subprime borrowers. Bank of America has already announced a similar program , particularly for Countrywide loans that they have purchased.
Each day, I watch with amazement the efforts that now have to be undertaken to rescue our nations economy from a combination of stupidity and greed. A financial industry creates imcomprehensible products to induce borrowers to take out mortgage loans they will not be able to pay when they are adjusted, packages these loans by the billions, sells them to investors all over the world, and the crap hits the worldwide fan when the homeowner can't pay off the loan.
Now...the homeowner is supposed to negotiate a modification with the same folks that got us into this mess in the first place. How comforting is that???
Our office has litigated subprime lending cases and are experts in the area. We have also negotiated many loan workouts. If we can help you navigate this minefield, don't hesitate to contact us.
Published on
09/16/08 01:01PM
by
Bruce A. Bierhans
In recent years, our firm has represented many brokers or financial advisors that have left their firms and moved to other investment banks or independant broker dealers. Obviously, after the events of 9/15, there are many other such employees in this position.
Did I sign a Non Compete Agreement? Is it still enforcable? What happens if I move all or a part of my book of business? Do I owe my old firm anything? Can I take any information from my old firm?
These questions, and many others, all all ones that we have confronted on behalf of our clients. We have successfully handled "workouts" and settlements, and are litigating cases where the brokerage is taking the offense and pursuing employees in court or before FINRA.
We are available to help you if needed.
Published on
08/02/08 06:56PM
by
Bruce A. Bierhans
I firmly believe that good trial lawyers must have a "release" of sorts to cope with the stress of the job. My three are the ocean, exercise and the theater. After a brief career as an actor in the late 60s and early 70s, I returned to the stage last summer.
This summer, during the month of August, I'm recreating the role of cornerman "Angel" in Kevin Rices' Payomet production of "Gloves Off", a high energy romp set in a boxing ring depicting the 1960s literary fued between Russian author Vladimir Nabokov (author of "Lolita") and Wellfleetian and New Yorker critic, Edmund Wilson. We did this show last summer at WHAT in a 4 night run and it won numerous accolades and awards. It's creative, thoughtful and a hell of a lot of fun.
We run Sunday through Tuesdays nights all month, with an additional Saturday performance on August, 23. Hope to see my friends and clients there!
See the link below.
http://www.ppactruro.org/payomet_theatre_schedule.htm
Published on
07/28/08 01:07PM
by
Bruce A. Bierhans
I have the privilege of serving on the board of directors with a group of astounding, committed members of my community in Wellfleet.
About a year and a half ago, I sat around the table with a group of women,whose talents I had yet to discover, to discuss the rennovation of a historical church in town and turn it into a community cultural center. I offered my assistance on the legal front, and like many other such efforts, hoped for the best.
In that year and a half, over one million dollars have been raised, and I have been awed by the commitment, talent, enthusiasm, untiring effort, and creativity of the individuals I have had the pleasure to work with. In addition, this effort has received wide spread local support and has created a sense of accomplishment and "community" that has been wonderful for our small town.
Since our first meetings, many more individuals and volunteers have become involved. There are too many names to mention, but Marla Rice, Anne Suggs, Ellen LeBow, Simone Reagor, Mary Grace Smith and Nicholas Gulde deserve particular mention. We have much more work to do, and are thankful that we now have so many new friends and supporters.
"Pres. Hall" as we affectionately call it, and it's people, have become like family to me. We look forward to the day when all the hard work will benefit the entire family of Wellfleet.
Published on
07/28/08 12:47PM
by
Bruce A. Bierhans
Our office has been involved in a number of areas of concern to clients that have experienced problems related to the economy. The two primary areas have been cases involving subprime or predatory lending and securities or investment related problems.
These problems have involved those struggling as well as those with wealth. In the investment area, we have represented clients that were sold Auction Rate Securities. Our clients were told these securities were "as good as cash." Unfortunately, they were not. However, we are pleased to report that, in at least one case, after putting the brokerage house on notice of potential claims, one half our our clients securities have been fully redeemed. We anticipate that more redemptions are on the way.
In the subprime area, while we are litigating some cases, we have also been successful in negotiating short sales or short refinances. We are finding that more lenders are now willing to come to the table and try to turn non productive loans into productive loans.
There is help out there and we are finding that there is a light at the end of the tunnel for some of our clients.
Published on
07/28/08 12:43PM
by
Bruce A. Bierhans
In todays Cape Cod Times, we learn more about the tragic death of David Hill. On October 17, 2006, David was killed after being shot multiple times by a local police officer. That evening, David was carrying and discharging a firearm and wearing a bullet proof vest. The tragedy is being referred to as a "suicide by cop" incident.
All but lost in the story is the fact that David had been prescribed "Ritalin, Zoloft and antidepressants, each with the broken promise of some return to normalcy."
I have represented and continue to represent families that have been broken as the result of suicides occuring while family memebers were being treated with antidepressants. Each has a common theme. The acts of suicide were violent events beyond the comprehension of family members. Hangings, selfinflicted gunshot wounds, or as in the Hill case, intentional self destructive behavior. Many will argue that depression related suicide is unavoidable. However, one must also wonder whether or not the use of antidepressants that are not appropriately monitored by a well trained physician create an "enabling" type of behavior that allows individuals not only to commit suicide, but do with an almost inexplicable act of violence.
A Harvard trained expert that I have worked with on my cases takes the position that antidepressants, WHEN USED PROPERLY, can be helpful in certain cases. However, what of the patients that are now prescribed them like candy, in an unsupervised or poorly monitored treatment plan? Much has been written about the "drugging" of America. The Hill case leaves many questions unanswered that may help us better understand this tragedy. What medications was he on at the time of death; what was the dosage; had the dosage recently been increased; was he in withdrawal from a recent change in medication; was he receiving talk therapy in addition to antidepressants; what was the experience of the physician that prescribed the medications in the admistration of these drugs?
If we carefully examine the Hill case, as well as others that have, or may have connections to the use of antidepressants, i.e the Virginia Tech massacre, we may learn more about the context in which the medications ought to be prescribed and how their use should be monitored. It's not just about money; it's about lives!
Published on
04/24/08 02:52PM
by
olivier kozlowski
I had the displeasure of attending a wake last night for a friend’s dad. Growing up, there were three of us who always hung out together. While we were in high school something happened to this friend. Nobody told us kids what it was, but he was never the same. He still isn’t – can’t work, attends a day program, though he does have his own apartment. So now this friend’s dad is gone. His elderly mom is still around, and he has an older sister who lives out-of-state.
For the first time, I found myself identifying with this friend’s dad. Why? As the parent of two autistic children, I don’t know whether my kids will be able to live on their own. I’ve spoken to lots of other parents of special needs children, and that concept is something nobody wants to think about for too long. What will happen when you’re no longer around to care for your child with special needs?
Fortunately there are ways to prepare for that eventuality. There are steps that can be taken to increase your child’s quality of life while preserving his or her eligibility for benefits. If you find yourself in that situation, give us a call and we can help walk you through the process.
Published on
04/09/08 09:58AM
by
sheldon toplitt
A recent newspaper article reported that 341 persons ages 65 and older died from falls in Massachusetts in 2006, the highest total on record since public health authorities began tracking such statistics, and almost two-thirds higher than the previous year.
This alarming statistic is all the more tragic because too often, death or severe injuries to seniors could have been avoided if not for negligent care by nursing homes or home health care providers. Many elders at high risk of falling are improperly monitored by nursing homes and home health care providers who fail to provide adequate supervision and safety devices such as siderails, monitors and "lap buddies."
Our firm has successfully litigated wrongful death and negligence claims against nursing homes and home health care providers. If you, or a loved one, has been injured in a fall, call us for a free consultation.
Published on
03/27/08 10:08AM
by
olivier kozlowski
When you bought your house, did you get an “80/20” deal? You know, a 1st and 2nd mortgage at the same time to avoid having to pay PMI or putting too much down. Have you taken out a home equity line since you bought your home?
If you answered “yes” to either of those questions, you’re not alone. It’s estimated that Americans owe $1.1 TRILLION in second mortgage debt alone. If you answered “yes,” do you know what the terms of your home equity line really are? Lenders have offered many different kinds of deals on home equity lines over the past few years. So dust off that closing packet copy you have in a drawer somewhere and read on.
First, check to see what your “draw period” is vs. your “repayment period.” Many home equity lines give you a 10-year “draw period,” which means you can draw against it, pay it back, draw again and so on. But the “repayment period” can vary greatly. You might have a 20-year repayment period, which means that whatever your balance is at the end of your “draw period,” you have the next 20 years to pay that back. Some repayment periods, however, can be as short as 5 years.
Next, see whether you’re paying interest only during your “draw period.” This may be a bit tougher to do, because sometimes lenders offer you an option on your monthly statements to pay a “minimum” amount, which might be interest only, or something more, which would actually start paying down your principal. Keeping with the example we used earlier, if you’ve maxed out that $100,000 line over 10 years, paying the minimum payment each month, and you are unfortunate enough to have a 5 year repayment period, you basically have a 5 year mortgage of $100,000. You don’t want to know what the payments on that will be.
There are other potential pitfalls with equity lines these days if you’re trying to refinance your first mortgage or sell your home. We’ll discuss these in the next blog entry on this subject. In the meantime, go “check your second,” and if you’d like to have one of our attorneys assist you in determining your mortgage situation, contact us at olivier@bierlaw.com.
Published on
03/05/08 02:27PM
by
Bruce A. Bierhans
Well...with the capable assistance of renowned psychologists and neuropsychologists, the insurance industry has come up with a new way to prove that you've been faking it all along!
As reported in the Wall Street Journal on March 5, the "Fake Bad Scale" is being used by neuropsychologists who often appear in court as expert witnesses in personal injury cases. Notwithstanding, other psychologists say the test brands truthtellers as liars...and even discriminates against women. Also, a noted retired psychologist from the University of Minnesota says, "This is great for insurance companies, but not great for people."
How about this: If you answer True to the question "My sleep is fitful and disturbed", you get 2 points towards the total of 23 that then labels you a malingerer; i.e a FAKER!
This test, in and of itself, should give every injured victim sleepless nights.
Our office has been handling these types of cases for 26 years and works hand in hand with our clients physicians to defeat these attempts by carriers to diminish the legitimate value of your claims. We look forward to the opportunity to represent you.
Attorney Bruce A. Bierhans
Published on
02/11/08 03:21PM
by
Bruce A. Bierhans
"My car got hit in the rear end and the other driver was on a cell phone."
Sound familiar? An all to familiar refrain these days. Cell phones, MP3 players, PDAs, GPS devices and video players...all competing for the drivers attention. In fact, lawyers, during discovery proceedings, now routinely ask for the bills associated with all these devices from the alleged at fault operator. Evidence that an operator may have been distracted by a mobile device can go a long way towards convincing an insurance adjuster or jury that another party was clearly at fault in a collision.
If you are physically able, after an accident, to make observations regarding these devices, it could be a big help to your attorney.
Bruce A. Bierhans
Published on
01/31/08 04:03PM
by
Bruce A. Bierhans
If you're listening to the news about the "Housing Crunch" these days, you might think that rates are through the roof and nobody can get a loan. What you may be missing is that rates have dropped close to the lows experienced several years ago at the height of the boom. Borrowers with good credit can now get rates in the 5's on a 30 year fixed rate mortgage through many "responsible" lenders. I emphasize the word "responsible" because there are many that are not. That is why you may need our help.
It may be time to evaluate your mortgage situation and our experienced attorneys can help you through the real estate maze. In addition, if you are in a problem loan, we may be able to help you in a "workout" of that loan towards a refinance. We have litigated predatory lending cases and are experienced in assisiting consumers in this area.
Bruce A. Bierhans
Published on
01/17/08 03:07PM
by
Bruce A. Bierhans
You're sitting at a redlight and it's snowing. You get clocked in the rear end by another car. You feel ok and get out and tell all at the scene that you think you're ok.
Two days later, you wake up feeling fatigued; your back hurts and you have a headache. Sound familiar? You likely have what is known as a "soft tissue" injury. Although defense lawyers try to minimze these injuries by employing the "W" (whiplash) word, your physician or other health care practitioner will tell you that this tearing or stretching of muscles can be disabling and that the injury can take months or years to heal. You may experience a restriction in your activities and may also lose time from work.
Our office has 26 years of experience in successfully handling hundreds of these cases; explaining the medical issues to judges juries, and obtaining successful results, either by way of settlement, mediation , arbitration or trial. Feel free to call to discuss your case.
Published on
10/01/07 03:03PM
by
Bruce A. Bierhans
I have heard horror stories lately about families that have had family members injured in car accidents and then, within days, received a direct mail solicitation from a law office. In numerous public statements, I have expressed my opinion that these solicitations are not only in violation of the Massachusetts Rules of Professional Conduct, but are also offensive and demean my chosen profession.
In twenty five years, I have handled and litigated hundreds of such claims involving personal injury or death. However, I strongly oppose this “get a case at any cost” tactic. We pride ourselves on our integrity, reputation and the service we provide to our clients. We hope that other lawyers will agree that this type of solicitation should ultimately be prohibited.
Bruce A. Bierhans
Published on
10/01/07 03:03PM
by
Bruce A. Bierhans
Frequently, cases come into the office involving a local contractor that has been sued personally by a customer. Unfortunately, I often learn that the contractor is functioning as a sole proprieter (much more on the Cape than I see in my off Cape office) with no corporate protection. This means that you can be sued in your personal capacity and that your personal assets are exposed.
At reasonable cost, we can establish a Single Member LLC, LLC or SubS Corporation that will shield you from personal liability…and help you sleep better at night. For more complex or multiple transactions, we are beginning to explore something called the Delaware Series LLC which is a single entity that can be used to hold multiple investments…real estate for example.
Of course, what will work best for you will depend upon your individual circumstances. Call us to discuss we’ll make sure that you’re well protected!
Bruce A. Bierhans
Published on
10/01/07 03:02PM
by
Bruce A. Bierhans
In todays Wall Street Journal, there’s an article entitled “Antidepressants Get a Boost For Use in Teens”. It discusses a new report, published in JAMA, that says that antidepressants were more effective than placebos in treating children and teens for major depression, OCD and anxiety.
In addition, a noted psychiatrist says that “antidepressants should only be used as part of a comprehensive treatment plan that is individualized to the needs of the child and the family.”
Well, how special. Now that we have big FDA mandated “black box” warnings, some physicians now realize that these drugs can not be prescribed like candy and that their patients (adults and children) need to be meticulously monitored for adverse side effects and suicidal ideation.
I have represented, and continue to represent families in cases in which patients did not receive this careful monitoring, and suicide was the result. It’s a pleasure to see that the standard of care is now catching up with what the pharmaceutical industry and the medical profession has known about these drugs for many years.
Bruce A. Bierhans
Published on
10/01/07 03:01PM
by
Bruce A. Bierhans
Our office has represented hundreds of individuals from New Hampshire to Boston and Cape Cod that have been involved in car accidents and have suffered personal injuries. Unfortunately, many people are injured as the result of an accident caused by someone carrying the “minimium coverage” of $20,000.00/$40,000.00, which means $20,000.00 is available for one injured person, or $40,000.00 for all persons injured in the accident.
In many cases, the victims injury is worth substantially more than the available minimum coverage. We advise all our clients to purchase at least $100,000.00/$300,000.00 (or greater) of Underinsurance coverage for themselves and their household members. This then provides coverage up to those limits if the at fault operator only posesses minimum coverage.
Feel free to let us know if we can answer any questions regarding car accidents or Massachusetts No Fault insurance coverage.
Bruce
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