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Sexual Assault: How the Burden of Proof in a Criminal Prosecution Can Affect a Civil Lawsuit

July 22, 2021 by Cohen & Malad, LLP Leave a Comment

The New York Times’ Monday morning headline this week was a report on How Rape Cases Get Dropped. The article examines why, even amidst increased social and cultural awareness in recent years surrounding sexual assault, prosecutors often still refuse to bring criminal prosecutions of sexual assault and frequently drop cases after they do bring charges. The report states:

“The Me Too movement led to heightened awareness of the prevalence of sexual assault, an increase in reports to police, and a new hope that people accused would be more frequently held accountable. But in New York City, statistics and the accounts of women who say they were attacked suggest that little has changed about the way the criminal justice system grapples with rape accusations.”

As mentioned in the report, a major reason rape and sexual assault cases are so often rejected by prosecutors is because of the high burden of proof that prosecutors must meet, coupled with the fact that sexual assault cases often present inherent challenges of witness credibility. Usually, there isn’t a third-party witness to these crimes, and as the report notes, in cases where “the attacker is not a stranger and alcohol is involved,” it can be extremely difficult to convince a jury of the defendant’s guilt.

The burden of proof in civil litigation, however, is lower than that in a criminal prosecution. Instead of proving his or her case “beyond a reasonable doubt,” a rape or sexual assault survivor plaintiff most only convince a jury by a “preponderance of the evidence.” In other words, the plaintiff must only be able to show that, more likely than not, the assault occurred.

While this lower evidentiary standard is, at first blush, helpful to survivor-plaintiffs, the aftermath of a criminal prosecution usually has a strong effect on the outcome of a civil lawsuit. Almost all the evidence set forth in a criminal prosecution against a perpetrator will become relevant in a civil action against that same perpetrator. When a prosecutor secures a guilty plea or conviction against a perpetrator, the survivor’s civil case is inherently much stronger.

On the other hand, if a criminal case is dropped or a jury finds a perpetrator not guilty, a survivor who wishes to pursue a civil lawsuit against his or her perpetrator will be left with an extremely onerous battle of combating the negatively skewed evidence from the criminal proceedings. Furthermore, a negative result in a criminal case is emotionally draining for a survivor, and in turn can often make survivors hesitant to move forward with civil action at all.

Cohen & Malad, LLP’s clients who are survivors of sexual assault are usually also taking part in a criminal prosecution against their perpetrators. In the unfortunate circumstance that a prosecutor believes he or she is unable to prove a rape or sexual assault charge, the decision to pursue a different or lesser charge, such as “battery,” is often still more helpful to a subsequent civil case than a prosecutor bringing no case at all or pursuing a charge on which a jury is unlikely to convict.

Prosecutors should continue to encourage survivors of sexual assault to come forward against their abusers. One way to encourage survivors is by exploring alternative courses of action that enable prosecutors to see these cases through. At the end of the day, a finding of guilt on a lesser charge such as battery, is still an acknowledgement by the perpetrator and by society that the accused act did in fact occur. It will result in at least some level of accountability for the perpetrator and creates more positive evidence for a survivor to build a civil case against their perpetrator. Most importantly, a conviction or guilty plea—even of a less serious offense— can provide recognition to the survivor that his or her courage to come forward was not for nothing.

Sexual Abuse in Indiana Schools

April 2, 2021 by Cohen & Malad, LLP Leave a Comment

VIDEO: A discussion with attorney Shaunestte Terrell

Talk with Shaunestte

Learn more about how Cohen & Malad, LLP’s sexual abuse litigation attorneys can help you here.

Transcription:

Hi, I’m Shaunestte Terrell. I’m an attorney on Cohen & Malad, LLP’s sexual abuse litigation team. And today I’m joined by Jaime Lira, our firm’s marketing and communications director. And we’re going to have a conversation about the problem of sexual abuse perpetrated by teachers in Indiana schools. In addition to representing sexual abuse survivors in civil litigation. I also host Cohen & Malad’s Support for Survivors podcast, which Jaime produces. And we talk about a variety of topics and interview guests to share their expertise and offer resources to help survivors get justice and healing. So I’d like to invite anyone watching this video to check out our podcasts. It is available on almost every podcast platform, and I think you could really get something out of it.

Shaunestte, we do cover so many interesting topics on the Support for Survivors podcast. And I thought it would be interesting to offer this larger conversation about sexual abuse in Indiana schools in a slightly different way and share it on the firm blog. So thank you for being flexible. Of course. So the media recently reported about a case filed against North central high school drama teacher. Nathan Shewell. Shewell was accused of abuse by several former students. Some claim that the abuse was sexual in nature while others mentioned verbal and physical abuse, RTV six reporter, Kara Kenney talked with roughly a dozen former students about their experience with the teacher. And she also interviewed you, Shaunestte. So what do you think is important for students and parents to know when it comes to issues of sexual misconduct?

Well, Jaime first and foremost, that is prolific. I think that people think that, you know, it can’t happen to me. It can happen to my kid, but it can, this is happening every day in schools, across the country. And certainly in schools within Indiana, it can happen to your child no matter what you think. It truly, we’ve had tons of parents who were just shocked and sad and obviously, and you know, that’s what we’re here for. But first and foremost, upon finding out that your child or another child has been abused, you have to call the police. The biggest issue at that point is the safety of your child and the safety of other children. Because as long as that teacher continues to be in that school, all those kids are at risk and we all have to work together to bring perpetrators into the light.

So they don’t have the opportunity to harm another child because as long as they stay in those classrooms and people don’t say anything, then they do and, you also have to look down the road. And that’s what we do at Cohen & Malad, LLP because oftentimes survivors of sexual abuse, and sometimes those who have been abused by a person in a position of authority, like a teacher, they suffer serious. Long-term ramifications as a result of the abuse and oftentimes ongoing mental health treatment is needed. That’s really expensive. And who does that burden typically fall on the parents or the survivor themselves as they get older. And that’s ridiculous. They shouldn’t have to have that ongoing costs for possibly the rest of their lives because this other person did this to them. And so we believe that the perpetrator and any negligent party who have some culpability in putting that child in harm’s way, they should pay for that.

And beyond that companies and organizations have to be held accountable. And I’ve said it a thousand times and I’m going to keep saying it until things change. I would love to be able to sit here and say that people will do the right thing because it’s the right thing to do, but it’s just not true. And we see it every day and we work to hold those schools accountable, and you know, other organizations too, it’s not just schools, churches, sports organizations, companies, you name it. We’ve probably seen it. And unfortunately the hard truth is holding them accountable is typically by going after their pocketbook. Because again, most of them just aren’t doing what they should be doing. And so in trying to hold those schools accountable in pursuing civil litigation against them, we have to abide by these arbitrary deadlines. I think most people have heard the term statute of limitations.

So they don’t really know what it means, but what it boils down to is there are deadlines in which we have to file things with court. Otherwise you are banned permanently from being able to civilly sue any of these organizations. It’s absolutely ridiculous. The deadlines are arbitrary. And you know, when most people find out that their kid has been abused, they’re not thinking about suing anyone rightfully so, why would you be? They simply want to hold that person accountable. And they want to make sure that their kid gets justice. But part of that justice is looking down the road and to be able to do that, we have to get some of these legal filings done in a really short period of time. And when we’re unable to help someone because of that statute of limitations, I think the kids are being victimized in another way, and it causes further damage because they’re just being, let down again.

And you know, the school has very serious responsibilities. First and foremost, you keep kids safe, period. That is what you have to do. And unfortunately as evidence in some of these discussions that we’re having here today, many schools failed to do that. They’re required 100% of the time to report any suspicion of abuse. Not I saw it happen it’s suspicion and if they do not do so. It’s not just, they look bad. They are subject to criminal prosecution. Yeah, it’s a crime. In fact, it’s not even just people within schools. It’s every adult in Indiana is what we call a mandatory reporter. That means again, if you even suspect child abuse, you are required to report that to the police. You do not have to directly witness it. If you hear concerning neighbor or concerning noises from your neighbors house, call it in. And if you don’t, you too are subject to being prosecuted, criminally.

And I have seen multiple school officials being charged for crimes because they failed to do so. And I think that that is an important point because we trust that our kids are going to be safe when they go to school. And when that doesn’t happen and they should have been, then they need to be held accountable. And the reason that law is so strict is first of all, as we said, child safety for this child, but it is proven that if we bring those perpetrators out into the light, then we can stop the abuse. There is no more further abuse because they cannot have access to children anymore. And again, that’s why we do what we do. We see over and over almost a daily basis schools that don’t report. I think oftentimes they think that keeping it quiet and trying to handle things internally is going to help protect the integrity of the organization. And that simply isn’t true. It’s the opposite, actually. These secrets will come to light and when they do, they will suffer much more damage than they would have if they’d done the right thing in the first place. And more importantly, fewer kids will be abused if they just report the abuse.

So I don’t think that what happened at North central is really unique. Is it?

Oh, no, definitely not. In many cases, we hear it as like an open secret that a certain teacher had sexual relations with students, but no one said anything and that’s illegal. That goes again, it goes back to that what we’re talking about with the mandatory reporting, and it’s not, it’s not unique. This happens all the time. Just since the beginning of this year, three Indiana school districts have been named in sexual abuse reports and it’s March. Two of those were here within Indianapolis, Nathan Shewell up at North Central and Tyler Carmichael at Speedway. And both of whom were known for these types of behaviors for years and no one called the police. Then the third one is actually a superintendent up in Northern Indiana, a superintendent. So it’s not just the teachers. I mean, that’s going to the top of the school corporation right there.

It’s shocking because you know, I did a little bit of research before we decided to have this conversation today and I found that across the state of Indiana. So this, this is our state. I found eight other reports of sexual abuse in 2020. So Shaunestte, why do you think that there’s more sexual abuse happening?

I don’t necessarily think that it’s happening more. I think that the MeToo movement has helped bring the conversation forward and taken away some of that shame that is often associated with sexual abuse. I think that we are experiencing a cultural shift finally, where people feel more empowered to come forward. But, you know, I want to make something clear. I’ve been prosecuting these crimes for a long time before we were doing this kind of work. And I want all survivors to understand you should never feel ashamed or embarrassed if you’ve been molested or sexually assaulted. Even if at the time, you know, you were a teenager and you thought that you were consenting to it, you, you were a child, it is not your fault. You didn’t ask for it. You didn’t deserve what happened to you. And again, I think that we do have a cultural shift happening, but we still have a long way to go. And, you know, part of what we do is trying to help people feel that empowerment to come forward and know that there’s somebody here on this side, who’s going to help them every step of the way, because it is a difficult process.

I think that’s a really good point. And, you know, like back to that larger issue about sexual abuse in schools, I found an interesting study called Educator Sexual Abuse, and it was conducted by Carol Shakeshaft. And she’s a professor at the Virginia Commonwealth University and she made several interesting points about Educator Sexual Abuse. And so one of the things that she said is that sexual abuse happens in all grades. And that 38% of reported adult abusers targeted elementary school students, which is a little surprising.56% actually abused middle or high school students, which I think is more of kind of like what we’re thinking. Then yet there was still 6% that actually abused students that were throughout kindergarten through 12th. So I found that really interesting. Her study went a little deeper and she actually found 225 cases of Educator Sexual Abuse in New York schools.

And none of those abusers were actually reported to authorities. And only 1% actually even lost their license to teach, which is surprising. And then part of that same study of all of the accused, all of them admitted to physical sexual abuse of a student. But then only 35% of them actually suffered negative consequences. And when she said negative consequences, she was talking about either getting fired, having a formal reprimand or a suspension from the school. And then 25% of those offenders received no consequences at all. Or they just had like an informal conversation like, “Hey, you should probably stop doing that”. And that I found really shocking. I mean, this was a study of Educator Sexual Abuse, and this is what they found. And that many of the people actually just chose to leave the school district and they kept their retirement packages and positive recommendations intact.

So they just moved on to the next school to do whatever it was that they were going to do. Just really surprising findings in this report that she put together. And she said, you know, even more shockingly was a recent report on sexual abuse in New York City. And what she analyzed was that 60% of the employees who were accused of sexual abuse were allowed to stay in that environment and that they were just transferred to desk jobs inside of the schools instead of directly being in front of the kids and teaching them. So I think that Shakeshaft’s study shows that really until recently the schools haven’t done a whole heck of a lot to prevent sexual abuse that was happening. She actually points to more recent things like lawsuit settlements, newspaper, and media coverage that has really started to shine a light on Educator Sexual Abuse and make schools want to do something about it. But that it’s still just not really high on the priority list for schools. So given all of that, Shaunestte, what do you think Indiana schools need to do to ensure the safety of our students and what do parents need to know and what do they need to do if their child reports that they’ve been sexually abused?

Well at schools, it’s very simple. It’s their number one priority here should be safety and ensuring the safety of those kids. They need to make sure they have got the proper protocols in place in terms of whether or not, and how to prevent it. And also going forward when someone does report or someone suspects, something, they should have very clear hiring and retention guidelines. You mentioned that in that study well, that’s exactly what happened with Nathan Shewell. He was dismissed from two other school districts in the past, but no one reported anything. So the next school, maybe didn’t know, and that’s how it continues to happen. So you need to have all these different protocols in place to make sure that they know when someone has those previous allegations. And so that the next school knows. So that there isn’t a next school and they need to report. The takeaway here at the end of the day for everyone is simple.

If you see something, you say something sounds easy because it should be not only is it the right thing to do for this child, you will protect children down the line. Likely not the abuser’s first rodeo, and they will continue to perpetrate abuse upon children until someone makes them stop. And if your child has been abused, call us, we can help you. You got to remember that those arbitrary statutes of limitations that we talked about a little bit more, they’re even more limited deadlines when it comes to school litigation and it’s all lawyer stuff, but it is really, really strict. And if we don’t get things done on time, then nobody will ever be able to help you. We can help you. We want to help you.

Sexual Assault Statutes of Limitations: Archaic, Arbitrary, Absurd Deadlines

March 2, 2021 by Cohen & Malad, LLP Leave a Comment

By: Shaunestte Terrell, Attorney

Anyone who’s ever taken in an episode of Law & Order (or even Night Court back in the day) has heard that strange term: Statute of Limitations, or SOL as we attorneys frequently refer to it. It seems like its meaning should be self-explanatory, but is it? In some ways, yes, but it is also extremely complex and convoluted. And, unfortunately, that matters.

Recently, WRTV reporter, Kara Kenney, conducted an in-depth, exceptional investigation into the absurdity of Indiana’s statutes of limitations (SOLs) as they relate to sexual abuse and assault. What she uncovered is the single biggest impediment to helping sexual abuse survivors. In Kara’s report, the absurdity of Indiana’s SOLs has finally taken center stage. At Cohen & Malad, LLP we face this challenge with survivors every day.

Childhood sexual abuse is pervasive throughout our society and affects a large percentage of both boys and girls. If a survivor of childhood sexual abuse decides at some point that they want to pursue civil litigation, they only have until seven years after reaching adulthood to file suit. Loosely, that will typically mean until the individual’s twenty-fifth birthday. If the lawsuit has not been filed by that date, the survivor is forever barred from filing suit. On its face, that may not seem like such a huge deal. However, the average age of disclosure for a person who was sexually abused as a child is 52 years old. That is more than double the years of life that person has lived when their statute expires. This is extremely alarming. Usually, at the time of a survivor’s twenty-fifth birthday, they have not yet fully realized the effect of the abuse on his/her life. Sexual abuse is not like a car accident. The survivor may not be fully aware of the misdeed, let alone the severe impact upon them for decades.

Real-life impact for sexual abuse survivors

It gets worse. If this is a person who was abused by someone at school (e.g., teacher, coach, etc.), there is an additional legal requirement. The survivor must file a technical, Tort Claim Notice within 180 days after their eighteenth birthday to give notice to the school that civil litigation against them may be pursued at some point. If that notice is not sent to the school within that time, the survivor is forever barred from holding accountable any school entity that was negligent in their hiring or retention practices. It is difficult to understand the rationale behind this deadline since it imposes a heavy burden on survivors while allowing perpetrators and their enablers to avoid responsibility and walk away scot-free.

Let’s look at this in a real-life, ongoing scenario. A local high school teacher was recently arrested for Child Seduction and Sexual Battery after assaulting a seventeen-year-old student. As is common, dozens of others have come forward since the perpetrator’s arrest to disclose repeated instances of sexual misconduct and assault at the hands of this teacher. Sadly, most of these cases are long past the expiration of the SOL.

One of these young women is now twenty-one years old. She was assaulted by this teacher when she was fourteen. At first, we were extremely optimistic that our Cohen & Malad, LLP team might be able to help this girl. But, sadly, we cannot. Why? Like almost all Hoosiers. she and her parents had never heard of the requirement to send a Tort Claim Notice so they didn’t do it. And why would they know of this obscure, arbitrary rule? Most attorneys aren’t even aware of this requirement, let alone a non-lawyer eighteen-year-old girl.

Survivors of sexual abuse deserve access to justice

Because this situation occurs so frequently among the survivors we meet with, we have joined with survivor groups, like Legislative Reform for Indiana’s Survivors (LRIS), to support efforts in the legislature to reform these archaic deadlines for the last several years. Unfortunately, our Indiana legislature has killed the bill, never even allowing it to have a hearing, despite the fact that such a bill has passed overwhelmingly in almost every other state where their legislature has voted on it. It seems nonsensical that Indiana legislators wouldn’t want to help protect children from sexual abuse and to help hold accountable perpetrators and enablers of days past. But that is the sad reality we face. The bill has already been killed for the 2021 legislative session as the Chairwoman of the Judiciary Committee refused to even grant it a hearing. Maybe next year, Senator Brown???

5 Reasons You Should Consider a Premarital Agreement

September 9, 2020 by Cohen & Malad, LLP Leave a Comment

By: Nicole Makris, Attorney

When marriage is on the horizon, the discussion of a premarital agreement can be an important step in planning for the future. Some people are hesitant about discussing a premarital agreement with their significant other because they fear it appears to be “planning for divorce.” This outlook overlooks the numerous benefits to a premarital agreement. Similar to an insurance policy, the premarital agreement is only there if you need it someday. Here are five reasons to consider when deciding if a premarital agreement is right for you.

Premarital agreements can be personalized.

You can design your premarital agreement to meet your specific needs. Some couples only wish to distinguish their personal property owned prior to the marriage as separate property so that the rest of the property acquired during the marriage would be considered marital property in the event of divorce. Premarital agreements can be limited in scope to protect specific assets, such as inheritances or residences, or to designate responsibility for specific debts, such as student loans.

Premarital agreements promote financial disclosure.

The process of entering into a premarital agreement helps promote transparency as to each party’s assets and debts. The sharing of financial standings with one another before marriage can help promote openness in dialogue surrounding financial matters during the marriage.

Premarital agreements are not only for people who have significant assets at the time of the marriage.

Indiana law considers all property of the parties to a marriage to be marital property subject to division. A premarital agreement can be especially important for individuals who have significant assets that he or she will be bringing into the marriage. Through a premarital agreement, these assets can be classified as that individual’s separate property if a divorce occurs. When an individual has interests in a family business, a premarital agreement can designate the business interests as that person’s non-marital property. However, premarital agreements are not only for people who have significant assets at the time of the marriage. Even if neither party has personal property of value at the time of the marriage, a premarital agreement can plan for the division of future assets that the couple acquires throughout the marriage, such as retirement accounts.

Premarital agreements can simplify property division in the event of divorce.

Premarital agreements can be extremely valuable in the event of divorce by outlining each spouse’s property rights, from real estate to bank accounts. Premarital agreements also allocate responsibility for debts of the couple, such as credit cards and vehicle loans. Having an agreement on these issues before marriage can minimize the number of issues that the couple must determine if a spouse later files for divorce.

Premarital agreements may be modified.

You and your spouse can decide to make changes to your premarital agreement during the marriage. Any modification will need to be in accordance with the terms of the original premarital agreement. Couples may choose to modify a premarital agreement when new significant assets or debts have been acquired or if they agree upon a new division of property in the event of dissolution of the marriage.

Premarital agreements can provide clarity to couples on property issues and simplify the division of property if divorce occurs in the future. I have helped many clients over the years with premarital agreements. If you are considering a premarital agreement or have additional questions, please contact me for a consultation.

The Effect of Covid-19 on Business Contracts

May 5, 2020 by Cohen & Malad, LLP Leave a Comment

By: Arend J. Abel, Attorney

With much of the nation shut down during the Covid-19 pandemic, many business contracts may not be performed. One of the questions that arises from that circumstance is whether non-performance will be considered a breach of contract, subjecting the non-performing party to an action for damages. There are three areas to consider in analyzing that question: 1) Force Majeure; 2) Impossibilitiy; and 3) Impracticability. Impracticability is confined to contracts for the sale of goods governed by the Uniform Commercial Code

Force Majeure

Force Majeure, a French term meaning “superior force,” is a doctrine that excuses contractual performance made impossible by events listed in a contractual force majeure clause. As the Indiana Court of Appeals has observed “the scope and effect of a force majeure clause depends on the specific contract language, and not on any traditional definition of the term. Specialty Foods of Indiana, Inc. v. City of South Bend, 997 N.E.2d 23, 27 (Ind. Ct. App. 2013). A typical force majeure clause may look something like the following:

If a party cannot perform the obligations of this agreement due to an act of God, legal prohibition, fire, flood, natural disasters, military operations, or any other circumstance not within the control of the party, then the party is excused from performing such obligations.

The key question to ask in considering whether a force majeure clause excused a party’s performance is whether the event causing the non-performance is one of the events listed in the clause. If the language does not specifically include diseases or epidemics, a court may or may not find that general language describing “other circumstances not within the control of the party” covers the event. The Court of Appeals decision in Specialty Foods suggests that the particular clause set out above would cover such an event. However, even slight changes in language can affect the result. For example, a clause that excuse a party from performing for “reasons outside the party’s control such as an act of God, legal prohibition, fire, flood, natural disasters or military operations” might not cover CoVid-19 because the “such as” language might be interpreted to require the unlisted events to be similar in kind to those listed. See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902, 519 N.E.2d 295, 296 n.* (1987) (language that “other similar causes beyond the control of such party” did not cover an inability to perform due to an inability to obtain insurance coverage).

Impossibility

Under Indiana law, as well as the law of most States, impossibility of performance excuses contractual performance, even in the absence of a force majeure clause. Wagler v. West Boggs Sewer District, 980 N.E.2d 363, 378 (Ind. Ct. App. 2012). However, the party claiming the defense must show that performance is “not merely difficult or relatively impossible, but absolutely impossible, owing to the act of God, the act of the law, or the loss or destruction of the subject-matter of the contract.” Id. (quoting Ross Clinic, Inc. v. Tabion, 419 N.E.2d 219, 223 (Ind.Ct.App.1981), which in turn quoted Krause v. Bd. of Trustees of Sch. Town of Crothersville, 162 Ind. 278, 283–284, 70 N.E. 264, 265 (1904)).

This may be difficult to meet in the case of Covid-19, though perhaps a business ordered to close by the authorities could meet the requirements, depending on the specific contract involved.

The Indiana Court of Appeals has considered whether an epidemic excuses contractual performance on two occasions. Gregg School Township v. Hinshaw, 76 Ind. App. 503, 132 N.E. 586, 587 (1921); Gear v. Gray, 10 Ind. App. 428, 37 N.E. 1059 (1894). In Gregg, the Court held that the fact that a school was ordered closed due to the 1918 flu pandemic meant that the School board did not have to pay teachers during the time the school was closed. In Gear, the Court reached the opposite conclusion when a school was closed due to a local diptheria epidemic. Explaining the different results, the Court in Gregg noted that in Gear, the local health authorities who ordered the school closed did not have express statutory authority to close the schools. In Gregg, the Court noted, there was such authority, and the contract had to be read as incorporating such authority, which rendered performance of the contract impossible.

It is unclear how Gregg will affect contracts of businesses that have been shut down in the latest pandemic. If the contract is one that literally cannot be performed when the business is shut down (such as a contract for an entertainer to appear at a venue), then most likely a court would excuse performance on grounds of impossibility. However, contracts by which a business purchases goods and services may be technically possible to perform, even if pointless. Courts may hold that performance is not excused in such cases.

Impracticability

Where contracts are for the sale of goods, the impracticability provisions of the Uniform Commercial Code could come into play. Section 2-615(a) of the U.C.C. provides:

Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Significantly, the provision excuses a failure to deliver goods by a seller but offers no relief to buyers. In addition, to be excused from performance, the seller must comply with paragraphs (b) and (c) of the statute. If the situation only partially affects the seller’s ability to deliver goods, paragraph (b) requires the seller to allocate production and deliveries among customers in a manner that is “fair and reasonable.” Paragraph (c) requires the seller to provide the buyer with notice that there will be a non-delivery or delay, and if an allocation is required under paragraph (b) what the buyer’s allocation will be.

Impracticability is a lesser standard than impossibility, so sellers may have the ability to avoid contracts that become burdensome to perform, though not strictly impossible.

Regardless of whether Force Majeure, impossibility, or impracticability is invoked, the result will depend on particular facts and circumstances affecting contract performance. The issues will also likely depend on contractual language that covers, or can be read to cover, the specific events in question. I have represented businesses in a variety of litigation for over 30 years. If you are in a contract dispute as a result of this pandemic, contact me to discuss how I can help your business and protect your rights.

Will Your Business Also Survive COVID 19?

April 16, 2020 by Cohen & Malad, LLP Leave a Comment

By: George W. Hopper, Attorney

The well-being of you and your family are of utmost concern during this pandemic. What about the well-being of your business? All businesses, large and small are navigating through the current economic downturn and its unique challenges.

Over the past 38 years, I have been advising business clients through five economic recessions. Each recession had certain similarities, but each was also unique in cause, effect and length. Nevertheless, during each recession, the business clients that survived and ultimately prospered each made the same crucial decisions in common:

Each client chose to be proactive rather than reactive in confronting economic and legal challenges to their businesses before they exhausted their financial resources; and
Each client engaged competent legal counsel and financial advisors sooner rather than later in the process.

Of course, it is without question extremely challenging to successfully manage a business in a good economy. During a recession, the task becomes even more challenging and can easily become overwhelming with the addition of new legal issues, shrinking cash flow and reduced available credit. The situation can change and will change dramatically and quickly during this crisis. For this reason, there will be no substitute for timely and competent legal and financial advice.

Depending on the situation confronting your business, there are a variety of tools that can be employed to find solutions. Early in the process, management can consider and pursue solutions that do not involve a formal legal case or proceeding such as:

Refinancing
Loan restructuring
Turnaround negotiations with affected creditors
Recapitalization
Sale or merger

If circumstances do not lend themselves to any of the forgoing tools, business clients may have to resort to litigation, or chapter 11 bankruptcy or a combination of the two approaches.

The bottom line is the sooner the business client proactively meets the challenges presented by the current economic crisis, the greater number of options will be available to address the client’s needs. In fact, during and as a result of the 2008 great recession, the vast majority of cases that I was involved in were successfully resolved out of court, which saved many thousands of dollars in professional fees and generated a superior outcome for both the struggling business and its creditors. Each one of those cases began and ended as a result of the timely decision by management to engage experienced legal counsel. It does not pay to wait. Contact me to discuss ways I can help you protect your business.

Nursing Homes in Indiana and Across the Country are Overwhelmed by COVID-19

April 13, 2020 by Cohen & Malad, LLP Leave a Comment

By: Amina A. Young, Attorney

On Friday, April 10, 2020, the Indiana State Department of Health (ISDH) Commissioner Kristina Box confirmed that twenty-four residents at Bethany Pointe Health Campus in Anderson, Indiana had passed away. Sixteen of the residents who died had tested positive for COVID-19. The other eight showed similar symptoms. Bethany Pointe, owned by Trilogy Health Services, LLC, is one of many nursing homes across the country facing coronavirus outbreaks.

Health care experts and officials have long stated that the elderly are likely one of the most vulnerable populations to the coronavirus due to compromised immune systems and/or underlying conditions.

On March 21, 2020, the Centers for Disease Control and Prevention (CDC) issued guidance for nursing homes and other long-term care facilities to take steps to assess and improve their preparedness for responding to COVID-19. The CDC noted nursing homes are among the highest at risk of being affected by COVID-19 because of their “congregate nature and the residents served (e.g., older adults often with underlying chronic medical conditions).” In its guidance, the CDC recommended rapid implementation of active screening of residents and health care personnel for fever and respiratory symptoms, restricting all visitation except for certain compassionate care situations, such as end of life situations, and implementing sick leave policies and other occupational health considerations.

The CDC also released a Coronavirus Disease 2019 (COVID-19) Preparedness Checklist for Nursing Homes and other Long-Term Care Settings, which identifies key areas that long-term care facilities should consider in their COVID-19 planning. The CDC’s checklist includes a comprehensive communication plan for facilities to ensure that they are communicating with staff, residents, and their families regarding the status and impact of COVID-19 in the facility.

On its website, Trilogy Health Services declares, in responding to the COVID-19 virus, it is “following guidance from the CDC, CMS, and state officials” and is “taking extra precautions over the coming weeks and months to ensure that [its] campuses remain guarded against the spread of viral infections.”

However, a chief complaint of Bethany Pointe residents’ families is that they aren’t being kept informed on the status of the facility’s overall impact from COVID-19, or with regard to their loved one in particular. Many families of Bethany Pointe residents state they were not even so much as notified when the first known cases were confirmed in the nursing home, and before they knew it or had a chance to respond to the situation, their loved one was showing symptoms of COVID-19.

Residents in nursing homes are members of our community and should be given the same respect and access to resources that the rest of the community has access to during a crisis. Families of nursing home residents should be kept timely informed on the overall status of the facility’s impact to COVID-19, and on their loved one’s health.

If your loved one is residing in a nursing home or long-term care facility, and you are concerned about the facility’s handling of its response to COVID-19, one action you can take is to file a complaint or report an incident to the ISDH. Complaint forms can be found on the Indiana State Department of Health’s website.

COVID-19 presents unchartered territory. This article is not legal advice. To discuss the specific facts of your situation, contact us.

How Might the COVID-19 Outbreak Affect Your Family Law Case?

March 23, 2020 by Cohen & Malad, LLP Leave a Comment

By: Nicole Makris, Attorney

The coronavirus (COVID-19) has had a significant effect on daily life as we know it. With school closures, travel advisories, and the economic repercussions of the virus, the COVID-19 outbreak presents numerous possible implications for family law cases. Your family law matter could potentially be impacted in the following areas:

Parenting Time

Parents should strive in these unprecedented times to cooperate with one another for the child’s wellbeing. Efforts should be made to maintain the normal parenting time schedule to the extent possible. The Executive Order (“Directive for Hoosiers to Stay at Home”) issued on March 23, 2020 includes that travel required to transport children pursuant to a custody agreement falls within the category of “Essential Travel”. Parents should communicate with one another regarding any changes to the parenting time schedule and should be flexible with make-up time. While flexibility is important, any changes to the parenting time schedule and the reasons for the change should be documented in writing. Expectations regarding the child’s E-learning should be clearly communicated between parents, as should any changes in the health of the child or other household family members in each parent’s respective households. If a parent opts to self-quarantine or is otherwise unable to exercise parenting time, the other parent should facilitate FaceTime and phone calls with the child.

Child Support

If you have encountered a significant decrease in hours, a loss of employment, or other financial hardship, you should consult with a family law attorney to review your current child support order. It is crucial to be proactive when seeking a modification of child support because the modification can only be retroactive to the date that the request to modify child support is filed (except in very specific circumstances, such as when the child has moved in with the parent who is paying child support).

Prenuptial Agreements

If you have executed a prenuptial agreement but have had to delay your wedding, you should ensure that the agreement is up to date by the time that your wedding is rescheduled, including updated lists of each party’s non-marital assets and debts and their values and balances, as well as the new date of the wedding.

Property Issues in Dissolutions of Marriage

If your dissolution of marriage is pending, you should obtain updated valuations of marital property before your case is finalized. Changes in the values of marital assets such as retirement accounts should be documented, and verified financial declarations should be updated.

Marital Settlement Agreements

It is possible that the effects of the COVID-19 outbreak could cause you to experience financial hardship to the extent that it is not possible for you to meet your obligations pursuant to your marital settlement agreement. For example, if you are unable to perform according to the property settlement or spousal maintenance provisions of your agreement due to the current events, you should consult with a family law attorney to review your settlement agreement and discuss your options in seeking to modify the agreement.

Upcoming Hearings

Precautionary court closures may cause continuances of upcoming hearings. Mediations are also likely to be either rescheduled or conducted by video conference.

Given the uncharted territory that coronavirus (COVID-19) presents, these are general topics to consider. This article is not legal advice. For specific questions on how the COVID-19 outbreak may affect your case, consult with an experienced family law attorney to discuss the facts of your situation.

When May A Request for Grandparent Visitation Be Granted?

February 17, 2020 by Cohen & Malad, LLP Leave a Comment

By: Nicole Makris, Attorney

A grandparent may seek visitation rights with a child if 1) a parent of the child has passed away; 2) the parents’ marriage has been dissolved in Indiana; or 3) if the child’s parents were not married when the child was born. It is important that paternity of the child be established, otherwise a paternal grandparent cannot be granted visitation. If there is an adoption proceeding pending regarding the child, a petition for grandparent visitation must be filed before a decree of adoption is entered.

When a grandparent requests visitation, the court considers whether the visitation would be in the best interests of the child and whether the requesting grandparent has had or attempted to have meaningful contact with the child. There are specific factors that courts are required to consider when determining whether grandparent visitation is in the child’s best interests. Following the United States Supreme Court case Troxel v. Granville, the factors that the court must address when a grandparent requests visitation are 1) a presumption that a fit parent’s decision regarding grandparent visitation is in the child’s best interests; 2) the “special weight” that is given to the decision of a fit parent; 3) “some weight” given to whether the parent has completely denied grandparent visitation or has allowed some visitation; and 4) whether the requesting grandparent has met the burden of showing that grandparent visitation is in the child’s best interests.

The requesting grandparents have the burden of proof in these cases, and these factors emphasize the amount of deference that is given to a fit parent’s wishes regarding the grandparents’ contact with the child. The judge may allow an in-camera (in chambers) interview of the child to help determine whether grandparent visitation is in the child’s best interest.

I help individuals and families in central Indiana on a variety of family law matters. Contact me if you have questions.

The Ins & Outs of Owning Recreational Property

December 24, 2019 by Cohen & Malad, LLP Leave a Comment

By: Rick Malad, Attorney

Let’s say you acquired some recreational land like I did years ago. You will likely encounter many issues that you did not expect.

Recreational Land Liability

Liability is always or should be a concern. If you use your land for hunting and/or fishing and you invite your friends and family to participate or you are concerned about trespassers, you should know the following;

Tree canopy in Indianapolis, IN Indiana Code 34-31-9 Limited Liability Arising from Agritourism Activities. Agritourism is defined, among other things as natural resource-based activities. This includes hunting, fishing, hiking, and trail riding. A provider (owner) is immune from liability for injury to a participant. There are many exceptions, however, such as if the provider charges a fee or knows of some dangerous condition on the land that is not disclosed.

Waiver and Release/ Insurance

Notwithstanding the statute, which is a good one designed to encourage an owner to share his good fortune with his friends and family, the owner should require each participant to sign a waiver and release of liability agreement where the inherent dangers of the activities are acknowledged by the participant. I even include surrounding landowners as releasees since it is always possible for a participant to cross over the boundaries of the owner’s property.

Always purchase insurance on your recreational land and improvements and include liability insurance and medical pay insurance to protect you.

Limited Liability Corporation or Other Entity

You may choose to acquire the recreational land in the name of a Limited Liability Corporation (LLC) or other legal entity which gives you an extra layer of protection. This is beyond the scope of this piece, but certainly recommended in some situations.

Trespassers

An owner owes very little duty to a true trespasser. The owner cannot willfully or maliciously cause a trespasser harm. The best protection you can have is to make sure you have signs on your property indicating that it is private property and no trespassing, for any purpose, is allowed.

Indiana Code 35-43-2-2 Purple Paint Law. Effective July 1, 2018, Indiana followed several other states to enact the Purple Paint Law. Keeping uninvited people off your land can be a full-time job. The Purple Paint Law allows an owner to use purple paint markings to deny entry to his property, basically informing a person, just like a sign would, that the property is private and no trespassing is allowed. Signs are expensive, labor intensive to install, and difficult to maintain. This statute sets out where you must place the markers, the distance between the markers and the size and height of the purple markers.

Ways to Generate Income

Some owners want to simply enjoy and share the enjoyment of this recreational land. There are ways, however, to generate income.

Farming/Farm Leases

Recreational land assumes that you do not farm your land for profit. If you have some tillable land you may be able to lease it to a local farmer. Those leases should contain information including

The term of the lease and extension, if any;
Participation, if any, by the owner which could include paying for a portion of the seed and fertilizer cost;
Cash rent amount per acre and when it will be paid if no participation by the owner;
Any other provision such as exclusivity, release and waiver of liability and lease limitation

Timbering

Conservationists now pretty much agree that selective timbering periodically is healthy for your woods. Hire a well-respected timbering company and, like I have, negotiate a timber management plan that coincides with your wishes and uses for the property. It is a good way to pay for improvements you might want to make on your property.

Hunting Leases

If you are not a hunter you may be able to lease all or a portion of your land to a third party and his guests for hunting and hunting preparation activities. I would not recommend this if you truly want to enjoy your recreational land. I lease land from other landowners for hunting and recreational purposes. Hunting leases are very complex and beyond the scope of this piece.

Tax advantage options and “keeping it as it is”

There are some options to accomplish both of these things at the same time. My goal for the future of my recreational land is to “keep it as it is” while allowing some limited future option. Two programs that I have taken advantage of are:

Classified Forest— Enrolling in the Indiana Classified Forest program is relatively simple, inexpensive and very tax advantageous. Contact the District Forester in your county for an application and procedures. Basically, if you have over 20 contiguous acres and are willing to observe the rules regarding the classified forest program (such as no development, no timbering without an approved timber management plan and no commercial activities) you may enroll all or a part of your land in the programs and obtain a significant property tax reduction.

Conservation Easement — This is a more complicated and restrictive program. Contact an accredited land trust organization. I used Sycamore Land Trust in Bloomington, Indiana, to start the process on my land. A conservation easement, in its simplest terms, is an agreement between the owner and the land trust to prohibit certain activities from ever taking place on the real estate and specifically allowing certain activities to take place. While there are many negotiable activities, the land trust will insist on certain prohibitions such as raising livestock, use as a commercial enterprise, mining, development of any kind and timbering without an approved timber management plan. Certain allowed activities may be specifically allowed such as hunting, fishing, trail construction and management, some farming and food plat cultivation. Some of your land may be excluded if you have some plans to do development like build a home or, in my case, to expand an already improved area of my land. You must have your land surveyed and you will need to pay a monitoring fee for the land trust to walk your property once a year to make sure all the “promises’ in the conservation easement are followed.

Once you have negotiated your written agreement, an appraisal is made to determine the market value of the land involved before the easement and after the easement with its restrictions. The difference between the two values is considered a charitable contribution to a tax-exempt organization. Both are win-win for an owner who wants to “keep it like it is”. Enjoy your recreational land!