ABA Section of Dispute Resolution Spring Conference Report

By Marnie Huff

The 14th Annual Section of Dispute Resolution Spring Conference in Washington D.C. had over 900 ADR advocates, arbitrators, mediators and dispute resolvers attending educational programs and Section business meetings.  I saw several Tennessee ADR friends there – Mark Travis, Howard Vogel, Marietta Shipley, Larry Bridgesmith, and John Blankenship.

The Conference began with the court ADR symposium, a full day event attended by 120 court administrators, researchers, judges, and neutrals. Needless to say, in this era of slashed court budgets, public access to justice is a key issue.  The symposium focused on new court ADR programs involving criminal law and prisoner rights, including “community conferencing,” a practice started with the Maori people in New Zealand and also used with juveniles in Australia, Canada, and more recently in Maryland.

The main Spring Conference had over 80 programs, with topics ranging from neuroscience, how to arbitrate better, mediating with difficult people, and women in ADR.  Poster presentations were new this year, including one I presented on impasse.  Other sessions explored novel approaches, such as using Skype to mediate.  Since civility in public discourse/collaborative governance is one of the Section’s themes this year, there was a Town Hall meeting facilitated by AmericaSpeaks to demonstrate constructive discussion of a volatile topic.

In the first plenary session, Israeli crisis negotiator Moty Cristal addressed negotiation in low to no trust situations.  At the second plenary, Cobe Williams, a member of the Interrupters in Chicago, explained how he mediated situations in the inner city, using video clips from the movie The Interrupters which has aired on Public TV.  On Saturday, the schedule included two all day programs - the Legal Educators Colloquium and the International ADR Workshop.

Members of the International Academy of Mediators (IAM) and the College of Commercial Arbitrators were part of the Section’s panels and conducted their own business meetings, scheduled to dovetail with the Spring Conference.  Last but not least, congratulations to Knoxville mediator Howard Vogel for his leadership as President of the IAM this past year!

Newsworthy Events

Two University of Memphis Law School Advocacy In Mediation teams (yes, that’s right – Advocacy In Mediation) recently competed in the ABA Regional Competition in Williamsburg, Virginia.  The team of Christopher Martin and Thomas Williams placed first in the competition while the team of Caroline Giovannetti and Ryan Hagenbrok placed fourth among the twelve teams.  Martin and Thomas advanced to the National Finals which was won by the University of Phoenix.  The competition is meant to transform the practice of mediation.  As the coach of these students, I informed them that I do not know whether they will change the practice of mediation or if the practice of mediation will change them.  I suppose for the time being both will occur.  However, there is a shift occurring toward a “new lawyer” – one that takes a problem-solving approach to disputes. 

by Marnie Huff*

ABA ADR RESOURCES

The American Bar Association Section of Dispute Resolution provides resources for mediators and arbitrators on its website.  A new addition is the ABA/College of Commercial Arbitrators Annotations to the Code of Ethics for Arbitrators in Commercial Disputes.  The annotations cite judicial decisions and other published writings from 1981 through 2011, as annotations to the 1977 and 2004 Codes.  Note, however, that it does not cite the numerous court cases and other writings that consider issues encompassed by, but not citing, the Codes.

LEGISLATION

TEAM Act.  On April 24, 2012, Governor Haslam signed the Tennessee Excellence, Accountability, and Management (TEAM) Act into law.  Although the statute’s new employee grievance system does not explicitly provide for mediation, the plan is for a mediation process to be set up by regulation.  See the Governor’s press release at http://tn.gov/governor/pdf/TEAMActRundown.pdf

CASELAW UPDATE

U.S. Supreme Court

In Marmet Health Care Center, Inc., et al. v. Clayton Brown et al., Nos. 11-391 and 11-394, __ U.S. __  (February 21, 2012) (per curiam), the U.S. Supreme Court reversed the holding of the West Virginia Supreme Court of Appeals that, as a matter of state public policy, all pre-dispute arbitration agreements applied to wrongful death and personal injury claims against nursing homes were unenforceable and that the Federal Arbitration Act did not preempt the state public policy.  The state court, misreading and disregarding U.S. Supreme Court precedent, did not follow controlling federal law that state and federal courts must enforce the Federal Arbitration Act with respect to all arbitration agreements covered by the Act.  A categorical rule prohibiting arbitration of a certain type of claim is contrary to the Act.  The Court remanded the case for further consideration of an alternative holding below that the arbitration clauses in two of the consolidated cases were unconscionable.

Selected Federal Courts of Appeal Cases

Third Circuit Distinguishes Stolt-Nielsen.  In Sutter v. Oxford Health Plans LLC, No. 11-1773 (3^rd Cir. April 3, 2012), Sutter, a health care provider, filed a class action against Oxford.  Sutter was a party to a Primary Care Physician Agreement with Oxford.  The Agreement included the following arbitration provision:  “No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the American Arbitration Association with one arbitrator.”  Oxford’s motion to compel arbitration under the broad arbitration provision was granted by the trial court.  The court also ordered that the arbitrator would decide all procedural issues, including those of class certification. Although the Agreement did not expressly refer to class arbitration, the arbitrator construed the Agreement as authorizing class arbitration, relying on the extremely broad wording of the arbitration provision.  Oxford filed a motion to vacate, arguing that the arbitrator had exceeded his powers under Section 10(a)(4) of the Federal Arbitration Act and manifestly disregarded the law, given the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., __ U.S. __, 130 S.Ct. 1758 (2010).  Recognizing that the Supreme Court decided that arbitrators may not infer consent to class arbitration solely from the fact that parties had agreed to arbitrate, the Third Circuit nevertheless affirmed the arbitrator’s award.  It noted that Stolt-Nielsen “did not establish a bright line rule that class arbitration is allowed only under an arbitration agreement that incants ‘class arbitration’ or otherwise expressly provides for aggregate procedures.”  Rather, Stolt-Nielsen “established a default rule under the Federal Arbitration Act: ‘[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.’”  The arbitrator in Sutter had a rational contractual basis for his determination that the first clause of the arbitration provision was broad enough to include class actions and the second clause sends all conceivable civil actions, including class actions, to arbitration.  

Supreme Court Denies Cert in Jock

The U.S. Supreme Court denied certiorari in Sterling Jewelers Inc. v. Laryssa Jock et al, No. 11-693 (U.S. March 19, 2011), leaving intact the Second Circuit Court of Appeal’s decision in Jock v. Sterling Jewelers Inc., No. 10-3247-cv(2^nd Cir. July 1, 2011).  Distinguishing Jock from Stolt-Nielsen, the Second Circuit reversed a trial court’s decision to vacate an arbitration award allowing class arbitration.  The district court granted the plaintiffs’ motion to stay the litigation and refer the matter to arbitration.  The arbitrator decided (before the Supreme Court had issued its decision in Stolt-Nielsen) the plaintiffs could proceed with a class arbitration.  Construing the parties’ arbitration agreement against its drafter, Sterling, the arbitrator noted the agreement did not include an express prohibition of class claims and did not mention class claims.  The agreement did include, however, arbitration provisions more broadly worded than the agreement in Stolt-Nielsen:  employees may “‘seek and be awarded equal remedy through [Sterling’s] REVOLVE [dispute resolution] program’” and the arbitrator had “‘the power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction.’”  Sterling had chosen not to revise its RESOLVE contract, even though several arbitral decisions in the past had permitted class claims.  The district court vacated the arbitrator’s award, finding the case factually indistinguishable from Stolt-Nielsen.  The Second Circuit reversed, holding that the lower court had “improperly substituted its own interpretation of the parties’ arbitration agreement for that of the arbitrator’s to conclude that the arbitrator had reached an incorrect determination that the parties’ arbitration agreement did not prohibit class arbitration.”  The district court substituted its own legal analysis for the arbitrator’s and failed to conduct the proper inquiry: “whether, based on the parties’ submissions or the arbitration agreement, the arbitrator had the authority to reach an issue.”  The stipulated “silence” of the parties in Stolt-Nielsen was interpreted by the Supreme Court to mean the parties “‘had not reached any agreement on the issue of class arbitration.’”  That is, there was no explicit or implicit agreement to submit to class arbitration.  Also, simply agreeing to arbitrate “does not equal an agreement to class-action arbitration.”  The issue in this case is whether the arbitrator had the power to reach a certain issue, not whether the issue was correctly decided.  An arbitrator exceeds her authority by considering issues beyond those submitted by the parties or reaching issues clearly prohibited by law or by the terms of the parties’ contract.  Section 10(1)(4) imposes a high hurdle for vacating an award.  The district court erred in engaging in a substantive review of the arbitrator’s decision.  The question of class arbitration was properly submitted to the arbitrator.  Neither the law nor the parties’ agreement categorically barred the arbitrator from deciding the issue – Stolt-Nielsen does not stand for the proposition that arbitration agreements can only be construed as permitting class arbitrations where they have express provisions permitting class arbitrations.  The agreement in this case does not prohibit the arbitrator from determining whether the agreement contemplates class arbitration.  She had a colorable justification for her decision under Ohio law – Ohio law does not bar class arbitration.  An intervening change of law, standing alone, is not grounds for vacating an otherwise proper award.  Unlike the arbitrator in Stolt-Nielsen, the arbitrator here did not base her decision on public policy grounds.

Arbitrator Exceeded Scope of Authority in Contract Interpretation; “Functus Officio” Doctrine.  In Muskegon Central Dispatch 911 v. Tiburon, INC., No. 09-2214 (6^th Cir. February 3, 2012) (not recommended for full-text publication), the Court of Appeals affirmed the district court’s decision vacating an arbitrator’s award and remanded the dispute to a new arbitrator.  The arbitrator exceeded the scope of his authority: 1) by concluding that one of the parties to a contract had the responsibility to escalate and complete a contractual dispute resolution procedure, and 2) by reading a contract provision as a mandatory and exclusive procedure for the parties to seek contract damages.  A new arbitrator was appropriate on remand under the “functus officio” doctrine (non-judicial official without further authority because duties of original commission fully accomplished).

No Agreement to Arbitrate in Last Integrated Contract.  In Mark E. Dottore, v. The Huntington National Bank, No. 10-4357 (6^th Cir.  May 4, 2012) (not recommended for full-text publication), the receiver of an investment fund sued the bank in connection with an investment fraud case.  Affirming the district court’s denial of the bank’s motion to compel arbitration, the Sixth Circuit held that there was no agreement to arbitrate under applicable Ohio law.  The fund accounts were opened with agreements that contained no arbitration provision.  Thereafter, when there was a bank merger, notice to all bank customers included an agreement to arbitrate.  However, later, a representative of the investment fund signed a change of signature form that included “Your Deposit Account Terms and Conditions” that governed the account unless varied or supplemented in writing.  This last contract is complete and unambiguous on its face, and is presumed integrated under Ohio Law.  It has no arbitration provision.  Therefore, extrinsic evidence of the parties’ intent is not admissible.

Remember to Get Court Order Staying Proceedings during Mediation.  One of the issues in Dixie M. Webb v. Kentucky State University et al, No. 10-6488 (6^th Cir. March 14, 2012) (not recommended for full-text publication), is whether the district court made a mockery of the mediation process and sabotaged the process by granting summary judgment in an employment discrimination case while the parties engaged in mediation.  The Court of Appeals held that the district court properly granted summary judgment and noted that the plaintiff could have asked the court to stay court proceedings while the parties mediated.

Tennessee Cases

Settlement Agreement Enforced; Statute of Frauds Satisfied by Emails.  In a case of first impression, Earline Waddle v. Lorene B. Elrod, No. M2009-02142-SC-R11-CV (Tenn. April 24, 2012), the Tennessee Supreme Court held that:  1) the Statute of Frauds, Tenn. Code Ann. § 29-2- 101(a)(4) (Supp. 2011), applies to a settlement agreement requiring the transfer of an interest in real property; and  2) the emails exchanged by the parties’ attorneys, together with a detailed legal description of the only real estate at issue in a cross claim filed by one of the parties in the lawsuit, satisfy the Statute of Frauds under the Uniform Electronic Transactions Act (UETA), Tenn. Code Ann. §§ 47-10-101 to -123 (2001 & Supp. 2011).  The Court noted that when deciding whether the Statute of Frauds applies, courts “must consider the terms of the settlement agreement, not the subject matter of the litigation.”  Further, the Statute of Frauds does not require a written contract.  Only a written memo evidencing the parties’ agreement is required.  Also, the party to be charged (or the party’s authorized agent) must sign one of the writings, a requirement satisfied in this case under the UETA by the party’s attorney sending an email with his typed name at the end of the email.  Copy of opinion at https://www.tba.org/sites/default/files/waddlee_042412.pdf.

Parol Evidence Rule Does not Apply in Fraud in Inducement of Settlement Contract.  In Deshon Ewan And Patrick Ewan v. The Hardison Law Firm and Jonathan Martin, No. W2011-00763-COA-R3-CV (Tenn. Ct. App. April 16, 2012), the plaintiffssought rescission of a release and settlement agreement in a vehicle accident tort case.  The plaintiffs had settled the case for the limits of the defendants’ automobile liability insurance policy.  They signed a release that included the defendants, the defendants’ attorneys, and the insurance company.  The release included an integration clause, stating that all agreements were embodied in the release and plaintiffs’ had agreed to the release “without reliance on any statement or representations made by Releases except as herein set forth.”  After later discovering a substantial general liability insurance policy they thought also would provide additional coverage on their claims, the plaintiffs sued the defendants’ attorneys, seeking rescission of the release based on fraud, a declaratory judgment that the general liability policy covered the plaintiffs’ injuries, compensatory damages from the attorneys for all damages resulting from the fraud, and punitive damages.  The trial court granted the attorney defendants’ motion for summary judgment based on the release, refusing to consider extrinsic evidence.  Reversing on appeal, the Court of Appeals held the trial court erred in refusing to consider extrinsic evidence of fraud.  One of the exceptions to the parol evidence rule is a claim of fraudulent misrepresentation in inducement of a contract, even when a release states that no extra-contractual representations were made.  Copy of opinion at https://www.tba.org/sites/default/files/ewand_041612.pdf.

Failure to Mediate Religious Disagreement per Parenting Plan.  In Lauren Ephgrave Jarrell v. Emmett Blake Jarrell, No. W2011-00578-COA-R3-CV (Tenn. Ct. App. March 28, 2012), the parties’ Parenting Plan required that the parties jointly make major decisions on religious upbringing, and, if they could not reach consensus, they would submit the dispute to a mediator.  Although the parents had disagreed in the past about the appropriate age for the children to be baptized, the mother had the parties’ children baptized without father’s knowledge or consent.  The father filed a petition for civil and criminal contempt against the mother. On appeal, the Court of Appeals:  1) reversed the trial court’s finding of civil contempt because the trial court was seeking to punish past conduct, not seeking to compel future compliance with the court’s Parenting Plan order, and  2) reversed and remanded the trial court’s dismissal the criminal contempt petition, apparently for insufficient notice, because proper notice was given.  Copy of opinion at https://www.tba.org/sites/default/files/jarrelll_032812.pdf.

Mediated Partial Settlement Did Not Eliminate Need for Evidentiary Hearing on Child Support; Misrepresentation at Mediation Allegation.  Daniel Lee Coleman v. Andrea Gibson Coleman, No. E2011-00974-COA-R3-CV (Tenn. Ct. App. MAY 8, 2012) involved a divorce where the parties resolved several issues in mediation.  The trial court entered a divorce decree without an evidentiary hearing on the remaining disputed issues.  On appeal, the Court of Appeals affirmed those parts of the decree that incorporated mediated agreements, except for the division of marital debt where the husband raised issues of misrepresentations at the mediation and mistake in formation of the agreement regarding marital debt.  The Court of Appeals also vacated the judgment awarding child support because, absent a stipulated agreement, the trial court must conduct a hearing on child support.  Copy of opinion at https://www.tba.org/sites/default/files/colemand_050812.pdf.

* Marnie Huff is past Chair and currently serves on the Executive Council of the TBA Dispute Resolution Section.  She serves on the elected Council of the ABA Section of Dispute Resolution and chairs the Section’s Membership Committee.  She is an independent mediator, arbitrator and workplace conflict management consultant in Nashville.  Her website is at www.MargaretHuffMediation.com

Greetings Dispute Resolution Section Members:

I want to thank all of you and the TBA for the opportunity to serve as Chair this past year.   Steve Shields will take over as Chair in June and I am sure you will give him your support and encouragement.  I certainly look forward to Steve’s tenure as he is one of the great leaders and innovators in ADR.

I am writing this letter before the TBA Convention in Memphis on June 6-9, but with all the work necessary for the convention we probably won’t get this Newsletter out until after the convention concludes.   When you do read this letter I hope that many of you will have attended our Section Meeting at the Convention.   I especially hope that each of you will be prepared to be an active member this next year and help Steve bring our Section to a higher level of service, outreach, collaboration and visibility.

Speaking of service and visibility, I want to recognize one of our members who epitomizes service and leadership in the field of dispute resolution.  So let me lend some local visibility to someone who recently, and very deservingly, received some national visibility for her success and leadership in ADR.   Kudos to Marnie Huff who is one of several women featured on the cover of the Spring 2012 edition of the ABA Section of Dispute Resolution’s Dispute Resolution Magazine.

Each of you who have been privileged to work with Marnie knows from firsthand experience what a consummate professional she is, and I encourage those of you who have not yet had this privilege to avail yourselves of the opportunity whenever possible.  You will be glad you did, and you will leave as the beneficiary from the encounter.  Congratulations Marnie!

Best wishes to all of you and thanks again!

John Blankenship, Chair

john@blankenshiplawoffice.com

Thanks primarily to Marnie Huff and Bob Arrington, we again have excellent articles for our newsletter.  We are always looking for new contributors, so please let me know if you have something you would like us to consider.  I also want to thank John Blankenship for his leadership this past year, which has included striving to improve the newsletter.  Speaking of that, let me know if you have any suggestions as to how it can be improved or topics that should be addressed in it.  I hope you enjoy this edition. 

Wearen Hughes

Editor, Dispute Resolutions

whughes@bassberry.com

     Those who represent juveniles in delinquency proceedings need to be aware of some new provisions pertaining to juveniles convicted of certain sexual offenses.  As of July 1, 2011, juveniles convicted of certain sexual crimes must register as sex offenders.  This new registration requirement applies to those found delinquent in juvenile courts.  Minors who are transferred to adult court, however, are exempt as they are already treated as adults, registering under the rules for adults. 

     The new registration requirement does not apply to every sexual based crime.  It only applies to those juveniles classified as “Violent Juvenile Sexual Offenders.”  To classify as a “Violent Juvenile Sexual Offender,” the following criteria must be met:

            1.            The juvenile must be fourteen (14) or older when adjudicated delinquent for a qualifying offense;

            2.            The juvenile must be adjudicated delinquent for committing one of the qualifying offenses, which are: Rape, Aggravated Rape, Rape of a Child (if the victim is four or more years younger than the delinquent), Aggravated Rape of a Child,

                           OR   

                           Attempt to commit any of the qualifying offenses.

AND    3.   The offense must have occurred on or after July 1, 2011.

     Some offenses committed outside the state of Tennessee also require registration.  If the juvenile was required to register in the state where the offense occurred, they are required to register in Tennessee, whatever the crime or date of crime.  Further, if a juvenile commits an offense outside of Tennessee and subsequently moves to Tennessee, this offense may also have to be registered if it meets the criteria for registration had the offense been committed in Tennessee.  For this scenario, a determination must be made by the TBI Sex Offender Registry Unit.  This unit should be contacted for registration information for such offenses.           

     Registration for a juvenile, however, is significantly different from registration as an adult.  First, the juvenile does not have to pay the registration fee until the age of eighteen.  The juvenile need not maintain the photo identification or driver’s license required by adult sex offenders until the juvenile reaches eighteen.  Further, the juvenile does not have to comply with any special residence restrictions, unless the court so orders.  Most notably, juveniles do not register on the public sex offender registry.  They are kept on a confidential list only available to law enforcement.  Only if the juvenile sex offender commits another sexual offense will the previously confidential record become public.

     Advocates should be aware that inclusion on the registry is not necessarily permanent.  A violent juvenile sex offender may also be eligible to have his or her information removed from the registration list.  Upon reaching the age of twenty-five (25), if the offender has not subsequently been found delinquent on another of the qualifying offenses or convicted of a qualifying sexual offense, the offender may apply to have his or her information taken off the registry.  The offender must submit a form through the TBI to escape the registration requirements.

     The information in this article and further details may be found in Tennessee Code Annotated § 40-39-202 et.  seq.

     Have you signed up for the easiest way to do pro bono in Tennessee?  OnlineTNJustice still needs lawyers to sign up and volunteer.

     Over the past 10 months, OnlineTNJustice.org has provided free legal assistance to more than 1,200 low-income Tennesseans. The site – a joint project of the Tennessee Alliance for Legal Services and the Tennessee Bar Association – went live in April 2011and is a resource that allows clients to request advice about a specific civil legal issue from a volunteer lawyer and get their questions answered – all online.

     Online Tennessee Justice was developed with the financial support and technical expertise of the information technology team in the Memphis office of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. The site screens potential clients for eligibility and, if they are qualified, allows them to post a legal question to a secure messaging system.

     Lawyers have the ability to log on to the site 24 hours a day and answer questions from the public at a time that best suits their schedules. Lawyers receive continuing legal education credit for the time they spend researching and answering questions, and they are covered by professional liability insurance maintained by the Tennessee Alliance for Legal Services.

     Sign up today at www.onlinetnjustice.org!

     Murfreesboro lawyer Tom Roark has a physical disability and can no longer practice law “in the ordinary way,” he says. “The possibility of helping others … within in the confines of my present situation is more welcome than I can describe. I get to keep my mind sharp and help somebody at the same time. It is a win-win.”

     Clients also are praising the service:

• I was very impressed at the lawyer’s quick response to our question. We really need this legal advice quickly too. We want to file our custody petition this week. Thank you! God Bless!
• This is a great site, and I will tell anyone who needs help about your site. I have been trying for months to get some help and advice about my problem and could not find any. The day I heard about it I used it and it is wonderful, thanks to everyone who helps with this site. I am very grateful.

     ADDITIONAL INFORMATION

     Link to website, http://www.onlinetnjustice.org

     Link to marketing materials, http://www.tals.org/files/F-Posters.pdf

     Link to January 2012 Tennessee Bar Journal article, http://tba.org/journal_new/index.php/component/content/article/718?ed=50

Dear T.B.A. Juvenile & Children’s Law Section Member:

     This will be the final Newsletter from the Juvenile & Children’s Law Section for the 2011-2012 year.  It’s been a fine year for the section.   In addition to our full day CLE back in November, the section has sponsored webcasts on the process of juvenile transfer to adult court and preventing bullying of children in school. 

     As always, we value feedback from members.  If there’s a topic concerning juvenile justice that’s near and dear to your heart (and practice), let us know.  We’re always trying to find new ways to be more relevant to membership. 

     I hope you had the opportunity to attend the T.B.A.’s annual convention in Memphis in June.   If you’ve never been, I’d strongly encourage you to attend next year.  The convention is a terrific way to meet colleagues across the state and to network with those who practice in your area of the law and I’d love to see you there.     

Truly Yours,

Carl E. Seely 

2011-‘12 Juvenile and Children’s Law Chair

     Dear T.B.A. Juvenile & Children’s Law Section Member:

     I recently had the pleasure of attending the TBA’s mid-winter meetings in Nashville.  Your Bar Association, as always, has a lot happening and our section has been active.   Believe it or not, the Juvenile & Children’s Law Section had 159 members at last count.   That’s a significant increase over a few years. 

     Our annual full-day CLE presentation in early November was terrific (I’d like to offer a special thanks to the section’s CLE chairperson, Daniel Bryant, for his excellent work putting the event together).   We presented a segment of the General Practice Seminar back in August and, during the coming months, this section intends to offer several webinars on topics like ‘Trying a Juvenile Transfer Hearing’, ‘Some Legal Considerations Regarding Bullying at School’ and possibly one on the growing use of Permanent Guardianship in Dependency and Neglect hearings.  If you have other topics to suggest, we’d love your input.

     The TBA Website is undergoing a revision that will enhance visibility for each section.  Hopefully we’ll be able to post links to cases of interest to our section members.  I encourage you to use the Juvenile & Children’s Law Section list serve on-line.   The more communication….the more participation we have from our excellent members… the better our section functions.  

Truly Yours,

Carl E. Seely 

Attorney at Law

2011-‘12 Juvenile and Children’s Law Chair

April 11, 2012:

Description:  Appointed clients in General Sessions, Criminal, and Juvenile courts and phases can overlap and become a chore to track for billing purposes.  This session will provide very simple forms and strategies for appointed-client case management. 

Credit Hours:  EP - 0.00, Dual - 0.00, General - 1.00

Speaker:  Lisa Cothron   

Course Schedule:  April 11, 2012 - 12:00 PM - 1:00 PM

Save Money:  Use the prepaid CLE credits that come with your TBA Complete Membership and take this course for free.  Not a TBA member, join now to start saving. 

The Costs:  $45.00 TBA Member Price;  $65.00 Non-Member Price

TBA members who are judges, lawmakers and law students can take TennBarU onsite courses at no charge for the programming. 

REGISTER TODAY

May 1, 2012:

Description:  Children who have committed serious offenses sometimes find themselves transferred to the adult criminal system.  This session will look at the process of transfer, the consequences of that transfer to the juvenile, and some considerations practitioners grapple with in negotiating plea agreements. 

Credit Hours:  EP - 0.00, Dual - 0.00, General - 1.00

Speakers:  Daniel Bryant and Carl Seely

Course Schedule:  May 1, 2012 - 12:00 PM - 1:00 PM

Save Money:  Use the prepaid CLE credits that come with your TBA Complete Membership and take this course for free.  Not a TBA member, join now to start saving. 

The Costs:  $45.00 TBA Member Price;  $65.00 Non-Member Price

TBA members who are judges, lawmakers and law students can take TennBarU onsite courses at no charge for the programming. 

REGISTER TODAY

May 15, 2012:

Description:  Bullying and harassment in schools can have devastating effects on students emotionally and physically sometimes resulting in retaliation and referral to juvenile court even for the victim.  This session will discuss specific strategies attorneys can use to push school systems to address this growing problem. 

Some of the topics include:  Ways to recognize when a client has been a victim of bullying and harrassment; Drafting a notification letter to the school; and Filing a complaint with the Office for Civil Rights. 

Credit Hours:  EP - 0.00, Dual - 0.00, General - 1.00

Speaker:  Sherry Wilds  

Course Schedule:  May 15, 2012 - 12:00 PM - 1:00 PM

Save Money:  Use the prepaid CLE credits that come with your TBA Complete Membership and take this course for free.  Not a TBA member, join now to start saving. 

The Costs:  $45.00 TBA Member Price;  $65.00 Non-Member Price

TBA members who are judges, lawmakers and law students can take TennBarU onsite courses at no charge for the programming.

REGISTER TODAY

Sherry A. Wilds

Senior Staff Attorney

Disability Law & Advocacy Center of Tennessee    

     You are meeting with your client Steve, and his parents, in your office to discuss his juvenile court case. Steve has been arrested for stealing a headset from the local discount store. While you are discussing his case, his parents mention to you that Steve has had a very hard year at school. He hates going because he is being bullied every day.

     Steve has cerebral palsy and has difficulty walking. The boys in his Math class call him names and make fun of the way he walks. One boy tried to fight him in the bathroom and pushed him down. Steve has talked about getting even with them or just quitting school. He is depressed and has started failing in school. What advice or help can you give to this family on the bullying issue? The information below can provide some basic guidance whether you will assist with this issue directly or provide some basic information to the families.

     Bullying and harassment may come up when you are counseling juvenile clients. Sometimes the bullying may be related to the charges brought against your client and sometimes it may be simply a side issue that is brought up during a meeting or discovered upon your review of school or counseling records. Either way, this article is intended to provide you with some initial steps and strategies to get the school system’s attention about the issue and to hopefully stop the bullying and harassment of your client. In addition to the strategies discussed in this article, you can investigate possible ways the bullying and harassment may have contributed to the behaviors of your client and the reason you are his or her attorney. You also can investigate any possible injury resulting or likely to result from the bullying and harassment to determine if the client has grounds for a lawsuit or other legal action.

     Tennessee has several statutes that require schools to take steps to address bullying and harassment (TCA § 49-6-1015 through TCA §49-6-1019). These statutes require school systems to have a bullying and harassment policy that addresses ways the school will handle bullying and harassment in school. In addition, the Office for Civil Rights (OCR) issued a Dear Colleague letter in 2010 that gives concrete steps schools should take to address and prevent bullying and harassment in the school setting. This letter can be found at http://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201010.html. The letter contains important resources on bullying as well as specific steps schools should take to address the issue based upon the individual situation and circumstances. These steps include such actions as an immediate investigation of the incident that is prompt, thorough, and impartial; immediate steps to address the problem; adopting and publishing appropriate policies and reporting procedures; eliminating hostile environments; separating the target and the harasser without penalizing the target; counseling as appropriate for the target and in some instances the harasser; and training for staff, students, and the community at large. In addition, schools should take steps to prevent retaliation and continue to follow up to ensure that bullying and/or harassment is not continuing.

     When a client appears to be the target of bullying at school, an important early step is to get all the facts so  the school can be put on written notice. Sometimes this can be difficult since some clients do not want to be seen as a “snitch” or are fearful they will be suffer further harm from telling the school. These are legitimate concerns; however, the student and family need to be informed that sometimes the situation continues to get worse if not dealt with appropriately. In addition, working with a trained mental health professional on this delicate issue is recommended. Written notice will hopefully get the school’s attention, enable the staff to have the information they need to address the problem, and help protect your client’s interests if he or she is injured or injures someone due to failure of the school to appropriately address the bullying and harassment. Best practice is to send the letter certified mail to an administrator and cc other appropriate school personnel. The letter should contain appropriate available information such as the following:

·      Date of letter

·      Purpose of letter is to put school on written notice of bullying and harassment

·      A timeline with details of any previous attempts to notify the school verbally or in writing of bullying and harassment

·      Student who is the target’s name and identifying information (e.g. birthdate)

·      Name and any identifying information of students involved in the bullying and harassment

·      Date(s) of bullying and harassment

·      Time(s)/class periods of bullying and harassment

·      Location(s) of bullying and harassment

·      Adults in charge during time(s) of bullying and harassment

·      Witnesses to bullying and harassment

·      Facts and details regarding form of bullying and harassment

·      Ways the target student has been affected by the bullying and harassment (e.g. depressed, school avoidant, drop in grades)

·      Request a copy of the school’s bullying and harassment policies

·      Demand bullying and harassment stop immediately

·      Request the school provide a written response by a deadline to address the steps the school intends to take to stop the bullying and harassment

·      Some steps that the school should take to address the bullying and harassment (training for staff, counseling for target, separate counseling for one bullying and/or harassing, development of reporting procedures etc.)

     If the bullying/ harassment is related to race, color, national origin, sex, or disability and the school failed to take appropriate action, the parents may consider filing an Office for Civil Rights (OCR) complaint through the United States Department of Education. OCR will review the complaint and decide whether to investigate. If they do open a case on the matter, the investigator or the attorney may ask both parties whether they agree to early resolution where the school and the parents can develop an agreement in writing to resolve the issue. OCR also may investigate and get a specific finding and require the school to take certain steps if a violation is validated. OCR typically will monitor compliance with an early resolution agreement or finding from OCR. An OCR complaint can be filed online through their office in Atlanta. The process is explained at http://www2.ed.gov/about/offices/list/ocr/docs/howto.html.

     In addition to the suggestions above, parents may want to contact their school board and, in some cases, the media to address the problem of bullying and harassment in their children’s schools. Certainly, parent can consider other more intensive options to address the issue and any damages incurred by the student. However, this article hopefully gives the attorney assisting juveniles with this critical issue some basic early step tools to stop the bullying and harassment and prevent it from reoccurring.