Posts Tagged ‘politics’

Medical Litigation

medical litigation

Hansen Medical Opens European Commercialization and Training Center
MOUNTAIN VIEW, CA–(Marketwire – 11/30/10) – Hansen Medical, Inc. (NASDAQ: HNSN – News ), a global leader in flexible robotics and the developer of robotic technology for accurate 3D control of catheter movement, today announced the opening of its new European headquarters in London that will serve as the hub for its commercial, training and physician support activities for its business outside …

Litigation Reform

litigation reform

Is constitutional litigation an effective instrument of institutional reform?

Is constitutional litigation an effective instrument of institutional reform?

generally speaking, no … by custom, courts avoid constitutional questions whenever and wherever possible

needless to say, on the other hand it has been an enormously effective tool over the course of history

Reform Panel recent crisis, the problems that have developed foreclosure eyes in recent weeks coherently present a test of whether regulators can react more aggressively and a newly emerging problems, as it did to the subprime crisis three years ago.

Fraud Lawyers

fraud lawyers

New Jersey Insurance Fraud Crimes Through the Eyes of a New Jersey Fraud Defense Lawyer

When we mention crime, even white-collar crime, insurance fraud is not what immediately comes to mind. Yet, insurance fraud has lately become one of the front-runners among the most often prosecuted white-collar crimes in New Jersey.

In fact, New Jersey has the toughest criminal insurance fraud statutes in the country. The Health Care Claims Fraud statute, N.J.S.A. 21-4.3 and the Insurance Fraud statute, N.J.S.A. 2C:21-4.6, make many acts of insurance fraud second-degree crimes. For starters, a second-degree crime in New Jersey carries with it a prison term of up to ten years and fines of up to $150,000.

The vast majority of insurance fraud cases in New Jersey are investigated and prosecuted by the Office of Insurance Fraud Prosecutor (OIFP) and these cases involve all thinkable areas of insurance fraud, including health, life, disability, auto, homeowners’ or commercial insurance coverages.

According the 2007 OIFP report, there was “a 10% increase in criminal sentences over last year’s figure and sent defendants to prison for a combined total of 147 years”. The report exemplifies the wide array of individuals who found themselves in trouble for insurance fraud: ” In 2007, OIFP recorded OIFP won convictions of four former police officers, two of whom will serve a total of 12 years in State prison. Four licensed health care providers received State prison sentences totaling 12 years. A licensed insurance agent was sentenced to a five-year State prison term. An auto body shop owner and his accomplice were sent to State prison for a total of nine years. The sentences imposed on several members of vehicle theft rings totaled 77 years in State prison, over $1.8 million in restitution, and $9,500 in civil insurance fraud fines”. The list goes on.

So, what is “insurance fraud” made of? One large area of Insurance fraud in New Jersey is Automobile Insurance Fraud. The most popular crime here is auto theft and “give up schemes”, where the owner or lessee of a car abandons the car or gives it up to a someone who agrees to dispose of the car. Next come staged accidents and fraudulent Personal Injury Protection Claims and criminal use of “runners”. These types of cases normally involve organized rings of “runners”, medical providers, and lawyers. Vehicle Insurance policies in New Jersey provide medical benefits for persons injured in car accidents as part of Personal Injury Protection (PIP) coverage. PIP insurance typically covers diagnostic testing and treatment for persons injured in automobile accidents. In many cases, uninjured passengers involved in accidents are contacted by “runners” who convince them to file claims for “soft tissue” injuries, such as “whiplash”. Such injuries are not easily verifiable by x-rays and MRI. In the end, “runners” receive their illegal commissions, medical and chiropractic mills provide unnecessary medical services, including fake diagnostic and treatment, for which they bill, and lawyers file unwarranted lawsuits.

Other case involving New Jersey Automobile Insurance Fraud are selling and buying fake insurance ID cards and insurance agent fraud where licensed agents steal insurance premiums or are engaged in fraudulent premium financing schemes.

Another large area that pays bills for New Jersey insurance fraud criminal defense attorneys is Health Care insurance fraud. Most such cases involve submitting fraudulent claims for payment for health care services that were never provided and received. The most often targeted individuals here are New Jersey doctors, dentists, chiropractors, nurses, physical therapists, pharmacists, and social workers.

The most widely used tool in New Jersey heal care insurance fraud prosecutions is the Health Care Claims Fraud status, N.J.S.A. 2C:21-4.3 that makes it a crime for any health care provider just to submit a false claim to insurance companies, no matter what the amount is. A non-provider only needs to submit a false claim for $1,000 to have committed a second-degree crime. Other criminal charges used in prosecutions of New Jersey health care insurance fraud cases are usually charges of theft, conspiracy, and falsifying records.

Another area of New Jersey insurance fraud is life and disability insurance fraud, both governed by the Insurance Fraud Statute, N.J.S.A. 2C:21-4.6. Life insurance fraud offense is submitting a claim that falsely represents death of a claimant or otherwise misrepresenting important facts concerning the claim. Disability fraud involves faking a non-existing condition in order to receive benefits or knowingly failing to disclose new income.

Probably the largest single area of New Jersey Insurance Fraud is Medicaid fraud, which is investigated and prosecuted by the OIFP’s Medicaid Fraud Section. New Jersey Medicaid Fraud can be committed by any health care provider that participates in the Medicaid program. New Jersey physicians, dentists, clinics, chiropractors, pharmacists, laboratories, nursing homes, etc. are routinely prosecuted for New Jersey Medicaid fraud.

The basic New Jersey Medicaid fraud crime involves billing the Medicaid program for services that were never provided or might not be provided by the billing provider, or when the amount billed exceeds the costs of services performed (over billing). Other Medicaid fraud charges in New Jersey may be associated with charges of patient abuse and criminal neglect.

Another related New Jersey Medicaid fraud area is Medicaid prescription and drug diversion fraud. This involves pharmacies billing Medicaid for drugs that were not actually dispensed. Doctors, who sometimes form “partnerships” with pharmacies to engage in this fraud, are understandably find themselves in deep trouble as well.

Home health care fraud is the last largely prosecuted New Jersey Medicaid fraud crime. Medicaid pays for personal care provided for eligible beneficiaries by certified home care assistants, aides, and nurses, all of whom must be certified and licensed by the State to participate in the program. Criminal activities in this are involve billing for services that were not provided, employing non-certified providers, and lying in the certification process.

New Jersey insurance fraud is a wide area and persons facing any of the insurance fraud charges should seek legal counsel as soon as they discover that they are under investigation. A consultation with a competent New Jersey fraud defense attorney is absolutely indispensable.

About the Author

Joseph Potashnik is an attorney in New York City and New Jersey practicing criminal defense and civil litigation. You can visit his websites at http://www.jpdefense.com (for NYC) and http://www.jpcriminaldefense.com (for NJ)

Im a victim of a fraud. what type of lawyer should I get? ?

I don’t what type of lawyer to look for? I was a victim of a mortgage fraud. they use my social security and this guy bought 2 houses. what’s really upsetting was the loan provider was my personal bank institution. I want to file a lawsuit. what type of lawyer should I try to contact?

Do not waste your time with a lawyer until you file a police report. You are a victim of identity theft. I’d worry more about my credit rating if I were you. Contact the 3 credit rating agencies and get a fraud alert put on your account (so that the person can’t do anything else). Cancel your credit cards and get new ones (notify them of the fraud). You should proceed with criminal charges first as it may pressure the defendant into making things right with you (if possible).

Defense Legal

defense legal
Is there a dsm diagnosis or legal defense for pathological intoxification?

Pathological Intoxication does not have it’s own diagnostic category in the DSM-IV, but it is mentioned. It would fall under the category of Other Alcohol Related Disorder.

I supposed an attorney could come up with a legal defense based on just about anything. Whether it is sucessful or not is another matter.

Frank Miller for the Comic Book Legal Defense Fund

Frequent Blunders in Choosing a Felony Defense Law firm in Houston

If you or a person you love has been jailed and is dealing with serious criminal charges, it’s crucial that you choose the best attorney to represent them in court. Unfortunately, the common person does not have expertise retaining a lawyer, and commonly, they end up making grave errors.

Listed here are just a few of the most frequent mistakes folks make when picking a felony defense attorney at law in Texas.

1.    Not getting together with the lawyer-There’s nothing not right with looking for a criminal defense legal professional in Houston on-line. But before you consent to working with someone, you ought to at the outset speak to the attorney. Don’t forget, cases go on for a long time, so you will be working with the legal professional you get for a decent stretch of time. You had better make sure that you select someone you’re relaxed with. You have to manage to have faith in the legal professional to do the the very best thing for you. You should to know they will represent you vigorously so you can receive the result you desire.

2.    Not selecting a felony defense specialist-Simply because a attorney gives criminal defense services doesn’t necessarily indicate he’s a criminal defense expert. You are best off deciding on an attorney who is a criminal defense specialist. Get hold of a lawyer with a extremely successful track record of defending his customers. Look at his older trial outcomes. What is the number of trials has he won and lost? Has he handled any cases similar to yours? Dealing with an qualified Tx criminal defense legal professional offers you the greatest likelihood at results.

3.    Picking an not in town attorney-You have to select a lawyer that is very familiar with the district courts, presecuting attorneys, judges, and operations. If you retain an out of town attorney, he will be like a blind man trying to walk across the interstate. This may perhaps make vulnerable your whole case. Make sure that you stay local. Pick a criminal defense lawyer who has experienced success right at this juncture in Tx.

4.    Picking an attorney only on name recognition-So you have found a attorney on some advertisements and you believe he’s the right chap for the chore. It is a dangerous slip-up that occurs far too regularly. Don’t forget, commercials are advertising campaigns. In advertisements, you always get a slanted point of view of an lawyer. As expected, he is going to portray himself as the very best in his advertisement. Do not buy into the hype. Instead, take the time to really investigate your felony defense attorney to be certain that he can back up his claims. Look at examination records and look at untainted evaluations to find out the reality.

The excellent news is it is incredibly uncomplicated to steer clear of these little mistakes. Just utilize these hints and use some common sense, and you will retain a good felony defense attorney in Tx who is able to help out you or your cherished one acquire a winning result in the court room.

About the Author

Greg Hill is an knowledgeable and top notch Houston criminal defense attorney. He provides personal injury and Houston criminal defense as well as other legal services. Complimentary legal consultations are obtainable upon request.

Legal History

legal history

Legal Studies Online Courses

If you are one of those individuals who have a passion for law but do not necessarily want to “practice” the profession, then a career in legal studies may be apt for you.

A wide array of legal studies programs and courses are available spanning Associate’s, Bachelor’s, Master’s and Doctorate degrees along side diplomas and certifications. Interestingly, these courses usually lead up to careers as paralegals and legal assistants. Though a formal qualification is not necessary, yet employers generally prefer formal education. Additionally, those who are interested in practicing law may also want to go through these programs since it helps them to connect better with their practice and the administrative work involved in it.

Professionals in legal studies essentially are the backbone of any successful practice in law. They are specialists in their chosen field and several times may overwhelm even the most experienced attorneys with their knowledge and court procedures. They offer the administrative support in terms of doing legal research, writing reports, taking care of paper work, filing necessary petitions in Courts, maintaining records system, scheduling appointments with clients and handling calls, to name a few. They provide low cost legal support in many offices that include corporates. An important distinction between an attorney and legal studies professional is the latter can’t practice in a Court of Law. Course work for these programs usually includes, among others, writing, drafting, legal documentation, legal processes, legal history and computer training.

These programs are available through campus and online modes. The Bachelor’s degree usually spans around 4 years with Associate’s, Master’s and Doctorate degrees lasting 2 years. Diplomas and certifications are of even short duration sometimes. Legal studies is assuming more and more importance with employers and companies looking to bring down their legal expenditure. As a result, many of the jobs that were originally done by solicitors are now being performed by paralegals. For greater acceptance, credibility and improvement of salary and career prospects, several graduates in legal studies also go through the accreditation process to get certified. Examples of such certifications are Certified Legal Assistants [CLA] or Advanced Paralegals [AP] through National Association of Legal Assistants [NALA]. There are also other specializations available in legal studies such as civil litigation, real estate law, torts, family law and estates.

The career outlook is very positive for the legal studies discipline. The Bureau of Labor Statistics forecasts that job growth in this field is expected to be faster than average of all occupations. In fact, growth in employment in the paralegals field is pegged at 27% over the next 5 years as per Bureau of Labor Statistics. Salaries can be lucrative and are dependent on education, experience, location and employer. Specializations also make a difference. In 2007, paralegals and legal assistants earned median annual incomes of $47,600. Additional fringe benefits may include bonuses and reimbursement of tuition frees from employers. Employment avenues in legal studies may span paralegals, legal assistants and court reporters, no name a few.

About the Author

Find more information about top legal distance learning programs and best distance learning universities of USA at DistanceLearn-ingU.com. Choose the best legal distance learning college in you prefer locations and earn online degree in legal studies from your home.

Legal fight over prior restraint on publication
News organizations asked a Washington court Friday to free a legal newspaper to publish information, found in court records, that has been ordered suppressed by a local judge.

Government Litigation

government litigation

How To Build Investor Confidence Through Good Corporate Governance

Corporate Governance, once relegated as a nice-to-have, has never been higher on the agenda of companies than it is now. Tough new regulations have been drafted, originating in the US, to try and restore investor confidence that has been eroded not only by the volatility of the stock market but by a string of public governance failures such as those at Enron, WorldCom, Martha Stewart etc

The Sarbanes-Oxley Act (the Act), named after the two US senators who proposed the bill, is designed to restore investor confidence through the implementation of strong prescriptive measures centered around Corporate Governance.

The most important outcome of the Act is to make Directors personally and criminally liable for infringements of the Act, notably the misstatement of information within financial statements (referred to as Section 404), and roles and responsibilities of a firms Board of Directors.

Evidence of the enforcement of this Act is best illustrated by a number of high profile cases, brought to court prior to the Act’s enactment, such as the ex-CFO of Enron, Andy Fastow, who has had his assets frozen and has been indicted him on 78 federal charges of money laundering, fraud, conspiracy and obstruction of justice.

The Act affects all companies listed on any U.S. Exchange, including non-US companies, but is being adopted throughout the world by countries such as Brazil, Mexico, Canada and to a certain extent almost every other country in the world. Companies hoping to list or be acquired would also do well to adopt many of the tenets within the Act if they wish such a move to be fruitful.

Though the Act is seen by many as a knee-jerk reaction to the scandals that have plagued the markets in recent years, much of what is being recommended is just good business practice with the oversight role of a companys board and its audit committee in achieving an effective control environment being promulgated by the COSO (Committee of Sponsoring Organizations of the Treadway Commission) internal control framework. COSO details that the control environment is influenced significantly by a firms board of directors and audit committee.

Boards should, and must, be held accountable for their actions and the influence they have on the ethical behaviour of Company employees.

The Cost of Compliance

The cost of the Act to all businesses has been high. Many firms have had to increase the size of their internal audit departments to cope with the provisions of Section 404 or recruit more members to the Board to comply with the governance requirements. Key-man or Directors & Officers (or Professional Indemnity) premiums have risen between 200 and 400% to guard insurance companies and underwriters against the increased likelihood that lawsuits may be brought against Directors.

Audit fees have jumped between 15 and 30% to cover auditors costs of increasing the size of audit teams needed to perform audits with extra assurance and to guard themselves about making incorrect judgments regarding the accuracy of financial statements.

For a start up business why is this important?

Traditionally in a start up phase the direction of a company is guided by its founding fathers. In the case of BioTech companies these are usually scientists with a basic understanding of finance. In order to gain the trust of either the market or Venture Capital firms an experienced financial practitioner, such as an ACA or CPA should be sought to add credibility and to enact control over the organization. The Act stipulates the need to have an expert on the Audit Committee with an expert being defined as someone who has the knowledge and experience to give assurance over both the internal controls and financial reporting environment.

It is never too early to start enforcing controls in spending at an organization. The inability to control costs or to come up with a sound business plan has caused the downfall of many firms. Most notably this has been seen in the dot-bomb bubble where billions of dollars of Venture Capital was spent on companies who had no experience in drawing up business plans that would ever generate a profit or had no controls over how the capital raised was to be spent.

Building a Board of Directors who have industry expertise and business acumen is just good practice. Diversification of these risks will only enhance a firms ability to navigate its way to success and avoid the pitfalls that plague start up firms.

The importance of good governance

1. Reputational impact mitigants – Reputational risks in terms of ethical behavior, restatement of financial statements (and any failures caught by Venture Capital firms in their due diligence work) can adversely affect a companies valuation

2. It will easier to attract good non-executive directors if they perceive that the likelihood of loss arising from taking a position is small (as they can be legally liable for non-ethical behavior of a firm). In fact there is a severe shortage of good non executive director candidates because the potential cost to them in case of legal actions outweighs the benefits associated with the position (i.e. the salary)

3. Good governance and a disciplined approach to financial controls can save you money (especially in control of expenditure)

4. Leads to potential reduction in both audit fees and insurance premiums through changing the control mindset of an organization

5. By implementing a more formal methodology for evaluating business risks and controls will enable CEOs to run their business more efficiently and effectively whilst reducing the likelihood of operational breakdown, litigation and fraud

is American Loss Litigation Legitimate?

is this a Government Agency

+ an attorney would tell you that it was as they make big bucks doing it.

Government Properties Trust Prices 8,000,000 Common Share Offering Income Newton, Massachusetts —- Government Income Properties Trust announced today, offers a bargain public of 8,000,000 common shares for each of the beneficial interest in a public offering price of $ 25.00 share.

State Litigation Policy

state litigation policy

An Equality Policy – Does Your Business Need One?

What is an equality policy?

An equality policy is a business document that outlines a company’s position on equality in the workplace. This is important – discrimination at work on grounds of age, race, gender, sexual orientation and religion are all illegal, and if your employees or the company as a whole acts in a discriminatory manner, you could be vulnerable to expensive litigation.

Why should my company have one?

The first reason to have a business document outlining your company’s stance on equality is simple – it’s good for your employees. Discrimination, bullying, maternity leave, and so on are areas that workers frequently feel hesitant talking about, and unclear about what their legal rights are. Having a clearly defined equality policy gives your employees something to refer to if they have any queries and gives them a clear process to follow.

From a manager’s point of view, it is of even greater importance that you have good quality policy documents to refer to in case of a dispute. Bullying and discrimination litigation can be costly, time consuming and very damaging for a business. A clear equality policy will help reduce the incidence of such problems. Established guidelines concerning what kind of behaviour is unacceptable and outlining a disciplinary procedure are essential, and you should be aware that if any of your employees acts in a discriminatory manner, you can be held responsible for their actions. A comprehensive equality policy can be invaluable in demonstrating that an employee has breached company regulations, and can direct any legal consequences towards the employee who has erred rather than the company as a whole.

What does it need to say?

The equality policy needs to:

•State your company’s commitment to equality and diversity in the workplace
•State the kinds of discrimination that are covered by your policy
•Outline a clear plan of action for encouraging equality in the workplace

Kinds of discrimination that should be covered in the equality policy include:

•Ageism – Note that it isn’t always older people who complain of age discrimination – there are many cases of younger workers complaining that their older peers are paid more for doing the same job.
•Sexism – This includes discrimination in hiring and pay, and also harassment in the workplace.
•Racism
•Sexual Orientation
•Religious Discrimination
•Disability Discrimination

What can go wrong?

If writing a comprehensive equality policy sounds daunting, consider getting a template document – many companies can provide you with a business document template to make sure that the policy is correctly worded. Of course, the most important thing to bear in mind is that once you have this policy in place, you have to follow it! You should also hold regular training days to make sure your employees know what is acceptable and unacceptable behaviour.

You also need to make sure that the document is kept up to date – equality laws change all the time, and you do not want to be caught out by a new development that renders your existing policy ineffective.

So apparently there will be no re-do in Florida or Michigan? 3 part?

1.Are the Democrats going to let millions of voters be disenfranchised or are they just going to seat the delegates from the original primaries?

1. The states of Florida and Michigan made the decision to move the primaries despite the warning from the DNC that their delegates would not be seated in the nomination process for the party.

2. Yes it is good policy to follow the rules set at the beginning of the election. Changing the rules would backfire more.

3. Yes, it is likely many people would take the DNC to task for changing the rules.

Insurance News

insurance news

Auto insurance news: Get the desired policy

Today there are countless number of people in every part of the world who rely heavily on to the auto vehicles. It is very important for the person to be very careful while going for a particular auto vehicle. It is the auto vehicle insurance policy that enables a person to take the sigh of relief in the event of any mishap. The auto vehicle insurance policy enables every person to recover from the unforeseen losses. There are countless number of people in every part of the world who rely on to the auto vehicles.

It is very important to note that with the passage of time the reliability of the man on auto vehicles and the demand of the man for the auto vehicles have seen a continuous upward trend. It is hence always in the best interest of the person to be very careful well in advance. It is the auto vehicle insurance policy that provides the man with the most desirable results in the end of the day. The auto vehicles have always provided the man with the most desirable results. It is the auto vehicle that has enabled the man to easily commute from one place to another.

For the consumers it is very important to keep an eye on to the auto insurance news in order to ensure that he is able to gasp the best deal. Today there are countless number of people that rely heavily on to the auto vehicles. The auto vehicles are the assets of long run. It is thus very important for the owners of the auto vehicles to realize the importance of the auto vehicle insurance policy. Today there are countless number of people who have gained a lot of advantage due to the auto vehicle insurance policy.

With the passage of time there has been countless number of people who have been able to get the most desirable results by relying on to the auto vehicle insurance policies. Moreover it is very important for the consumers to be very careful while going for a particular auto vehicle insurance policy. It is very important for the consumers to understand the importance of relying on to the expert’s opinion prior to purchasing the auto vehicle insurance policy quote. It is the expert who can always guide the consumer about the right kind of the quote.

About the Author

http://www.onlineautoinsurance.com is a leading <a href=”http://www.onlineautoinsurance.com/quotes/” target=”_blank”>multiple auto insurance quotes</a> source. Click for more information <a href=”http://www.onlineautoinsurance.com/learn/” target=”_blank”>car insurance questions</a> and other informative topics.

What can I do when the travel insurance company denies a claim?

I bought a travel insurance for my dad when he came to visit last year. It was for an emergency coverage. He did got an emergency treatment for kidney failure. After long process of filing, now I got the news that it is denied due to pre-existing condition. What can anybody suggest that I do?

You’d have to hire a lawyer. The fine print in those insurance policies renders almost any illness as “pre-existing”.

Litigation Jobs Dc

litigation jobs dc
legal market in DC?

Ok, I have to say that I find yahoo answers incredibly helpful. This is a farily specialized question but I always get wonderful feedback, so I’m going to give it a try. I’m a lawyer. I went to a top tier school (Wake Forest) and graduated in the top 30%. I then clerked for a federal judge at the district court level and have spent the last two years at a 13-lawyer firm in the south doing insurance defense. I have gained wonderful litigation experience and have had the oppprtunity to do things most young lawyers are not allowed. I have been looking for a job in DC for months. I thought I was at a perfect point in my career to make a lateral move but I’m not having any luck w/the job search. I’m using 2 recruitors and am also searching on my own. Is the DC market really this snobby that someone from a top tier school who did reasonably well can’t get a job? Or is the economy this bad? I guess there are other reasons as well, such as bad luck etc. Anyone with any opinions?

Yes, those firms are very snobby and I don’t think they would consider “top 30%” to be “reasonably well.” There is so much competition that the firms like to hire the top 5-10% of the class (although your clerkship should be good to some firms). Have you looked into the surrounding areas? Virginia maybe?

Did you make any contacts at any of the firms in DC during your practice? Many firms will also take someone who is referred to them by a current/former employee over another applicant.

INNOVATION NOT REGULATION

Wine Appraisal – Protecting your assets!

Many of us who are enophiles have amassed quite a valuable collection of fine and rare wines. We appreciate the artistry of wine, drink it regularly, and often boast to our friends when we acquire a wonderful treasure. This being said, we happily proceed with our passion and pursuit of collecting, never giving a second thought to protecting our wine as we do our other valued assets. Is your wine collection insured and has it been expertly appraised?

If you have a substantial collection of fine and rare wines, you should seriously entertain the thought of having your wine professionally appraised. Imagine the worst case insurance claims scenarios such as fire, flood, mechanical equipment failure (i.e. cooling unit in your wine cellar dying), and theft! These disasters could wipe out your entire wine collection instantly. Does your homeowner’s insurance policy [The following insurance companies offer wine insurance policies. Firemans Fund, Travelers, Chubb, AXA, and InsureYourWine.com.] protect your wine collection currently? In most cases, your homeowner’s insurance policy would require you to obtain an additional rider to your existing policy to protect your wines. Your insurance company requires that a dollar value be placed upon your entire wine collection, and this valuation is usually performed by an expert on valuation, a certified appraiser).

Have you ever considered other issues affecting your wine collection such as personal investment, estate planning, charity donations, and tax issues? These legal concerns also require the need for a certified wine appraisal. The IRS Tax Code changed in 2007 and any charitable donation you make to a nonprofit in excess of $500 dollars requires the filing of IRS tax form 8283 and also requires attaching a copy of your certified wine appraisal to your tax return.

What are the qualifications of a certified appraiser? A certified appraiser is someone who possesses training, an appraiser designation, and certification in the Uniform Standards of Professional Appraisal Practice (USPAP), which is a federal guideline established by the US Congress in 1986. All USPAP certified appraisers are registered with the Appraisal Foundation in Washington DC, and are overseen by the appointed congressional sub-committee. Are appraisers licensed? Only real estate appraisers are currently required to be licensed in most states. Personal property appraisers (i.e. wine appraisers) are not required to have a license, but are certified in USPAP just as real estate appraisers are. Unfortunately, your local wine shop retailers and wine distributors, although knowledgeable about the wines they handle and sell, are not qualified as appraisers, unless they are trained appraisers and certified in USPAP.

How can you spot a fraudulent appraiser? There are many appraisal organizations today awarding designations to appraisers, but do not be deceived by these designations! Only those appraisal organizations offering appraisal certification in USPAP are legitimate. Ask to see the appraiser’s proof of his/her USPAP certification or his proof of registration with the Appraisal Foundation in Washington DC. Footnote: It is a violation of USPAP for any certified appraiser to charge a percentage of the appraised value as a fee. Legitimate wine appraisers charge a flat fee or hourly rate only.

Wine appraisal work is not cheap! Don’t let appraisal television programs mislead you into believing that a wine appraiser has quick and easy job. We don’t! A wine appraiser must inventory, noting condition and significant information, and photograph all of the wines to be appraised. This can take easily one day or longer. Then the wine appraiser must research the wine and pull his/her market comparison sales data (i.e. comparables). The time involved in this task alone can take days. After these steps have been completed, then the wine appraiser must write the wine appraisal report. USPAP also requires that an appraiser must keep the appraisal report for a period of five years, and seven years if an appraisal case is involved in litigation, before the reports can be destroyed. As you can easily see there is a great deal of work that goes into generating expert wine appraisals.

Over the years, I have appeared as an expert witness in many court cases in which issues of valuation were disputed by individuals, insurance companies, etc. More often than not the presiding judge would dismiss the other party’s alleged expert witness, usually a wannabe appraiser, as being unqualified and unfit due to their lack of appropriate appraiser credentials. I have not lost a case yet, or a case of wine for that matter. Protect your wine assets and have them professionally appraised.

Litigation Policy

litigation policy

PUBLIC INTEREST LITIGATION: MADE OR INTERPRETED

“We have to evolve new principles and lay down new norms, which would adequately deal with the new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails.“

  Chief Justice Bhagwati

Beginning with the first few instances in the late-1970′s, the category of Public Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedure. The foremost change came in the form of the dilution of the requirement of ‘locus standi’ for initiating proceedings. Since the intent was to ensure redressal to those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers. In numerous instances, the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as ‘epistolary jurisdiction’.

The phrase ‘public law litigation’ was first prominently used by American academic Abram Chayes to describe the practice of lawyers or public spirited individuals who seek to precipitate social change through court-ordered decrees that reform legal rules, enforce existing laws and articulate public norms. However, the evolution of Public Interest Litigation (PIL) in India, or Social Action Litigation – as Prof. Upendra Baxi chooses to describe it, has accommodated several other distinctive features.

In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government’s condonation of abusive practices, in most public interest-related litigation, the judges take on a far more active role in terms of posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. The Supreme Court of India has been able to shape appropriate remedies for a variety of situations on account of the wide discretionary powers for granting constitutional remedies that have been conferred on it as per the language of Article 32 of the Constitution. Furthermore, under Article 141 of the Constitution of India, the Supreme Court’s rulings are considered to be the ‘law of the land’ and become binding precedents for all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in Public Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that gives due weightage to the interests of the underprivileged and backward sections in society. A significant consequence of this is that creative remedies designed for particular fact-situations come to be widely reported and are referred to by Courts all over the country. In this way, the rulings given in PIL cases create an active judicial dialogue within the whole legal system.

The advent of Public Interest Litigation (PIL) is one of the key components of the approach of ‘judicial activism’ that is attributed to the higher judiciary in India. The Courts’ interventions have played a pivotal role in advancing the protection of civil liberties, the rights of workers, gender justice, accountability of public institutions, environmental conservation and the guarantee of socio-economic entitlements such as housing, health and education among others. This has not only strengthened the position of the judiciary vis-à-vis the other wings of government, but has also raised its prestige among the general populace.

Nativity of Public Interest Litigation

Traditionally a petition could be filed by a person who suffered infraction of his rights and was ‘an aggrieved person’.  Exception was made in the case of petition for Habeas Corpus where a relative or friend could file a petition on behalf of the person in detention. The emergence of  pro bono  publico  litigation, that is litigation at the instance of a public spirited person espousing cause of others, known as public interest litigation or social action litigation has relaxed the traditional rule considerably.

Peter Cane has suggested in his book on Administrative Law  that in public law matters grant of remedy depends upon the consideration of public policy. In public law matters the court will hear and grant the remedy if they are satisfied, that the public interest demands that such remedy be granted. We can see this incorporated in the judicial process of our country. After careful and thorough examination of developments of law standing in various countries including our own, Bhagwati, J. in  S.P.Gupta v. Union of India  allowing, among others, petitions of lawyers against a circular of the Ministry of Law and Justice on ground of violation of or threat to the independence to judiciary, held:

“Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or for the violation of some provision of Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.“

Such extended approach on the question of locus standi, Bhagwati, J. observed “is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realization of the constitutional objective”. One of the several propositions laid down in support of this extended approach was repeated in Bandhua Mukti Morcha  v.  Union of India in the specific context of Art 32 in the following words by Bhagwati, J. :

“Where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Art 32…..so that the fundamental rights may become meaningful not only for the rich and well to do who have the means to approach the court but also for the large masses of people who are living the life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress.“

The Honorable Supreme Court of India had explained the nature of Public Interest Litigation in  Sheela Barse v. Union of India, the technique of public interest litigation serves to provide an effective remedy to enforce group rights and interests . Many a time important public issues involving interpretation of Constitutional provisions are raised through PIL.

With the introduction of PIL one can potentially check government actions with an environmental impact that threaten to dislocate poor people and disrupt their lifestyles. Conservative estimates place the figure of India’s project displaced people over the past four decades at 16 million no more than a quarter of whom are satisfactorily rehabilitated. The Morse Report to the World Bank which reviewed the Sardar Sarovar project on the Narmada notes that the ‘the record of resettlement and rehabilitation in India ….has been unsatisfactory in virtually in every project with a large resettlement component’.  Now the court can take cognizance of the matter and proceed suo moto or on a petition of any public spirited individual or body.

Milestones of Public Interest Litigation in India

One of the earliest cases of public interest litigation was that reported as Hussainara Khatoon (I) v. State of Bihar. This case was concerned with a series of articles published in a prominent newspaper – the Indian Express which exposed the plight of undertrial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Court’s attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the ‘right to speedy trial’ was deemed to be an integral and an essential part of the protection of life and personal liberty.

Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the Constitution. These included inhuman conditions prevailing in protective homes, long pendency of trials in court, trafficking of women, importation of children for homosexual purposes, and the non-payment of wages to bonded labourers among others. the Supreme Court accepted their locus standi to represent the suffering masses and passed guidelines and orders that greatly ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse , took up the plight of women prisoners who were confined in the police jails in the city of Bombay. She asserted that they were victims of custodial violence. The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay.

Public interest litigation acquired a new dimension – namely that of ‘epistolary jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration, It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that:

“…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found”.

In Municipal Council, Ratlam v. Vardichand,  the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases. The Court, recognizing the right of the group of citizens, asserted that if the:

“…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men.”

In Parmanand Katara v. Union of India, the Supreme Court accepted an application by an advocate that highlighted a news item titled “Law Helps the Injured to Die” published in a national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment, since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law.

In many other instances, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs. It was therefore the extensive liberalization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India. The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary.

The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others. For instance, in People’s Union for Democratic Rights v. Union of India, a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell foul of the constitutional prohibition on child labour and the non-payment of minimum wages was equated with the extraction of forced labour. Similarly, in Bandhua Mukti Morcha v. Union of India, the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen. It is also through the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-judicial killings by state agencies.

In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders placing strict liability for the leak of Oleum gas from a factory in New Delhi, directions to check pollution in and around the Ganges river, the relocation of hazardous industries from the municipal limits of Delhi, directions to state agencies to check pollution in the vicinity of the Taj Mahal and several afforestation measures. A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel. This was followed some time later by another order that required privately-run ‘autorickshaws’ (three-wheeler vehicles which meet local transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent. Another crucial intervention was made in Council for Environment Legal Action v. Union of India, wherein a registered NGO had sought directions from the Supreme Court in order to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special ‘Green bench’ has been constituted to give directions to the concerned governmental agencies. An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan. The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the legislature has not enacted any law on the point. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is nevertheless an important step towards systemic reforms. A recent example of this approach was the decision in People’s Union for Civil Liberties v. Union of India, where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of problems in the implementation of this scheme such as the pilferage of foodgrains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme.

Conclusion- Balancing a double edged sword

The power of the Court to entertain any circumstance that may hinder societal growth, or may cause hardship to a class of individuals is not uninhibited. It is carefully regulated with tight reins, and cases of public interest are taken up only after rigorous scrutiny. For instance, in a case wherein a challenge was made to the Government of India’s telecommunication policy, the Supreme Court refused to entertain the matter on the ground that it purely concerned a question of policy. Similarly, public interest litigations that have sought to prohibit the sale of liquor or the recognition of a particular language as a national language, or the introduction of a uniform civil code, have been rejected on the ground that these were matters of policy and were beyond the ambit of judicial scrutiny.

At the time of admitting matters in the form of Public Interest Litigation (PIL), the Courts have to carefully consider whether or not they are overstepping their domain. Upon considering the issues at hand, they must then consider whether the orders they intend to pass can be realistically implemented. Judges must also be attuned to the fact that inconsistencies in the observations made by different Courts with respect to the same set of issues, can add to administrative difficulties. There is also a need to keep a watch on the abuse of process by litigants so as to avoid a situation where such cases occupy a disproportionate extent of the Courts’ working time. Justice S.P. Barucha has expressed the need for caution in the following words:

“This court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter productive to have people say ‘The Supreme Court has not been able to do anything’ or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and is, therefore, of cardinal importance that orders that are incapable of obedience and enforcement are not made.”

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