”But do we have to go to Court...?”
One of the most common reasons people give to avoid confronting disputes in their life are the costs of the resulting conflict, and not just financial costs.
Litigation is invasive and often contentious - the process itself often destroys relationships and results in an artificial “winner” and “loser” when a more flexible solution may have created at least some value for both (or all) involved.
Enter the concept of “alternative” dispute resolution - resolving conflicts without suing each other. Resolutions tend to be interest-based and take into account the circumstances, resulting in sustainable solutions that can even improve relationships.
Someone trained in dispute resolution can help either by very effectively negotiating for you in an advocate role, or by taking a “third party neutral” role (often called a mediator or facilitator) where she does not represent any one party but instead helps them to reach agreements on difficult issues.
The process is voluntary, flexible, and completely tailored to each situation. Agreements as to some or all issues are put into writing and are binding on everyone who signs.
Costs can vary widely depending on the complexity of issues, preparation required, anticipated length of mediation, and whether any ongoing/future involvement by the mediator is contemplated. But early intervention dispute resolution will always be less expensive than litigation.
If you have a dispute and want to discuss our mediation/facilitation services, contact us to schedule a consultation to discuss what we can do to help.
Please do not share any information you would not want disclosed in the initial contact - if you decide to propose me as a mediator to the opposing party, I have found that full disclosure of any communications to that point helps overcome any initial skepticism that I have been biased by being contacted first by the other party.
Also, when acting as a mediator, I am not acting as anyone’s attorney or giving legal advice. I may give opinions on likely legal outcomes but any such statements are opinion only and not meant as legal advice to be relied upon. Additional explanation and clarification of my mediator role is provided in our intake materials, but it is important to be clear that even though I practice law as an attorney-advocate that my role is very different when acting as a third party neutral (such as being a mediator).
Recently we have seen the issue of bullying take center stage in Yelm, WA. A series of Facebook discussions on the local Yelm pages motivated the local newspaper to run a series on bullying – including its most recent article entitled “When Bullying Crosses the Legal Line.” Available at: http://www.yelmonline.com/news/article_99929f50-578f-11e7-a0ad-678975ccddaa.html (Online subscription required for access)
The article provided some good quotes from school officials and the police about bullying and harassment in general. But it was not intended as a clear guide of what a parent (or student) should do if a kid is being bullied. Day to day coping mechanisms are essential – but no one (adult or child) should have to implement daily coping mechanisms just to participate in their daily life! As adults we sometimes take for granted the laws and procedures put in place to protect us from the bullies in the world. If everytime you went into work, someone called you names, whispered behind your back, spread rumors, etc. – and human resources did nothing but tell you how you can change your own behavior, rather than imposing consequences on the perpetrator – what kind of message would that send to the bully?
If your child stands up for him or herself, and the bullying does not stop – perhaps it is time to enforce some consequences on the bully and those allowing the bullying to continue. Just like in the adult world, perpetrators must be held accountable in order for their behavior to change. Your child should not have to rely on their own coping mechanisms just to function in the face of bullying – adolescence is difficult enough, am I right?
Mediation and other types of Alternative Dispute Resolution.
Before going to the court system for relief, it may be advisable to contact the Education Ombudsman. The Education Ombudsman is an office that works across the state to mediate between families and schools.
Their website is: http://oeo.wa.gov/. If you don’t believe the school has adequately addressed the issue, the next step may be to get the EO involved. This also begins to develop a case history and foundation should additional steps need to be taken if mediation does not result in positive changes.
You can also employ the services of a mediator or collaborative lawyer to help you solve the issues. This serves a dual function of laying a foundation for future litigation if attempts at resolution fail.
Anti Harassment Order (“AHO”)
Although it was mentioned in the article, a civil anti harassment order is not a viable option to deal with most bullying situations.
It is very difficult to obtain an anti-harassment order against another minor. The statute provides that the only way a court will issue such an order is “in cases where the person to be restrained has been adjudicated of an offense against the child protected by the order, or is under investigation or has been investigated for such an offense.” RCW 10.14.040 (7):
And, even if the child has/is being investigated, the court still may not issue the protective order. It must consider “among the other facts of the case, the severity of the alleged offense, any continuing physical danger or emotional distress to the alleged victim, and the expense, difficulty, and educational disruption that would be caused by a transfer of the alleged offender to another school.”
In sum, before you file for an AHO you should already have an open police report, and followed up to ensure that there is an active investigation. Gather your own evidence, witness statements, and school records and request that the case file be updated with that information. Unfortunately, sometimes it takes persistence to actually get a case opened – police tend to be much more dismissive of “schoolyard issues” than say, for example, domestic violence allegations. Once there is an active investigation, then you can try to obtain an AHO – without at least an active investigation, the statute does not allow the court to issue an AHO between minors.
Having an attorney involved can help you to gather and present a case to the police to get the underlying investigation started before pursuing the AHO.
Litigation (or at least the threat…)
Sometimes the only way to make people and institutions accountable is via our justice system. If you have tried to work with the school, called the Education Ombudsman, and reported the issues to the police to no avail – what is your remedy? You and your child have legal rights. Education is a fundamental right.
In the case of school bullying, you would probably have claims against both the bully (and his/her parent(s)) and the school itself. (Another blog post will address parental liability for their childrens' actions specifically)
The seminal Washington case setting school liability is McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953). A school and student have a special relationship, and thus a school has a duty of care to students. This standard has been applied on several occasions to impose liability on a school for anything from shop class accidents to sexual molestation by a teacher.
More recently, the duty of the school to protect against bullying came up in Hopkins v Seattle Public School District No. 1, No. 73147-5-I (July 18, 2016).
In Hopkins, the plaintiff was struck by another student and suffered a broken jaw. Because "School districts owe a duty to protect the pupils in its custody from dangers reasonably to be anticipated— including the foreseeable misconduct of third-parties" (McLeod), Hopkins claimed that the school district should have reasonably anticipated that the other student (who had a history of behavioral problems and aggression) would attempt to assault him, and should have protected him from that assault.
The case was on appeal regarding a claimed error in the instructions given to the jury on the "special relationship" between the school and the student, so the decision does not include a lot of background facts such as whether the school knew about prior incidents of bullying involving the perpetrator. But the case does establish that a school can be held liable for not foreseeing and preventing harm caused by a bully, at least under some circumstances.
Also in 2016, the Washington Supreme Court ruled that, in some circumstances, a school can be liable for failing to protect a student from conduct that occurs off campus by a third party. Liability for a breach of duty while a student is in custody is not cut off merely because the harm does not occur until later. The Supreme Court clearly held that "…districts have a duty of reasonable care toward the students in their care to protect them from foreseeable dangers that could result from a breach of the district's duty. While the location of the injury is relevant to many elements of the tort, the mere fact the injury occurs off campus is not by itself determinative…. As the Idaho Supreme Court noted in a somewhat similar case, " the relevant inquiry is to the location of the negligence rather than the location of the injury." N.L. v. Bethel School District, 378 P.3d 162 (Wash. 2016)
In NL, the school principal was informed that an 18 year old student was a sex offender with predatory characteristics, yet the principal did not inform the student's teachers or coaches as was school policy. N.L. was a 14 year old who was taken off campus by the 18 year old and raped.
Making the jump from imposing liability for an off campus rape of a 14 year old by a fellow 18 year old student who was a registered sex offender to imposing liability for off campus bullying may seem far fetched. But the duty to reasonably foresee harm caused by a fellow student exists regardless of the degree of resulting harm. And, a school district is liable for harm which occurs off campus as a result of the school's breach of its duty to reasonably foresee and protect from that harm. Situations can be imagined where a school fails to recognize bullying and intervene to protect the bullied from the resulting harm - both physical and mental/emotional - that would occur both on and off campus.
In conclusion - even if you don't want to actually sue the school district, you are more likely to get officials to take your case seriously if you put together a foundation documenting the bullying and how it is effecting your child and his or her ability to attend and participate at school. Retaining an attorney to articulate your case and what you want done can also be an effective method of communicating that you are serious about your child's wellbeing and right to an education free from fear.
We are committed to advancing justice for our clients and our community. The community aspect of our philosophy includes ensuring that our institutions, including education, remain accountable. If you would like to schedule a consultation to discuss your options to address a bullying problem, feel free to call, email, or a submit a confidential inquiry via the link on our homepage.
Breckan Law PLLC is very excited to announce that we have secured a new location to better serve our clients and community.
The new location is just one block from our current location.
We will not have a physical location between September 16th and October 1st as we relocate. We will of course still be available to meet with clients and will arrange to do so at mutually convenient locations during those two weeks.
Our new location features private, off street parking behind the building for client privacy; a large conference room that can accommodate meetings, mediations, and depositions; original hardwood floors; multiple entrances that will allow us to provide supervised visitation services for the community; and other features that will enhance our ability to serve clients and community.
Please stop by and see the new place after October 1, 2016!
When you have decided to separate from your spouse (or, if you are seriously contemplating separation), one of the best steps you can take is to pay for a consultation with a knowledgeable, experienced advocate who seems to actually care about your unique situation.
A good consultation will answer your immediate questions and help to formulate your exit strategy (or, potential future exit strategy).
Our consultations begin with you sending us an email with 1) the questions you want to make sure are answered at the consult, 2) a brief description of your situation, and 3) anything you believe is of particular relevance. We work with your schedule to set up the appointment to meet in our office. (We can also arrange a telephonic or video call if you are not in the Olympia/Yelm, WA area). Payment of $150 is collected at the beginning of the appointment.
Why not just call around to find a "free" consultation? The old adage "you get what you pay for" comes to mind. Primarily, free consultations are offered for the purpose of enticing new clients. Free consultations are not designed or intended to provide the person any real value - they are targeted to get the person signed up as a client. (The exception is if you have a personal injury case; it is industry standard to provide free personal injury consultations)
The bottom line: If you provide value for your consultation, you are more likely to get a valuable consultation. When scheduling a paid consultation with an attorney, pay attention to whether they want to be prepared for your meeting. We don't need every detail for a consult, but an attorney should at least want an understanding of the basic and most important facts as well as your initial thoughts and goals.
Email us today to schedule your consultation: firstname.lastname@example.org or simply click on the mail icon below.
It is tempting to choose the most inexpensive insurer possible when selecting auto insurance. No one intends to actually use the coverage; many people would not even carry it if it wasn't required by law.
Selecting the right insurer and coverage may end up being one of the most important decisions you make. Some insurers routinely violate their duties to their insureds, and fail to comply with state laws that protect consumers.
Whether you are on the receiving or giving side of a collision, the resulting impact on your life will be largely dictated by how your insurer handles the claim.
For example, if you are in a collision and have PIP (Personal Injury Protection) insurance - regardless of fault, you are entitled to reasonable medical treatment that is related to your injuries from the collision. How your insurer determines what is “reasonable” and “related” however, varies from carrier to carrier. USAA, for example, outsources the administration of its PIP coverage to a company called “Auto Injury Solutions.” I have found that PIP coverage is routinely cut off without reason, and well before the coverage limit is reached with USAA. This frequently causes insureds to delay treatment that is necessary both for their recovery, and to prove their damages in a case against a third party driver’s insurance coverage. Insureds frequently have to threaten or file a lawsuit against their own carrier, just to obtain the benefits to which they are legally entitled!
Another example arises when you are either the at fault or non fault driver, and a claim is filed for property and injury damages resulting from a collision. If you were at fault (hey, these things happen – doesn’t mean you’re a bad person), your interests are served when your insurer settles with the person you have injured in a timely and fair manner. Even though you have paid your insurance premiums, your insurer can choose not to settle, thus exposing you to additional liability. You also may be subpoenaed to produce documents and evidence, be deposed, and testify at trial – just to save the insurer money that should go for the damages caused. Meanwhile, the harm that you have caused to the injured person is compounded over time – justice delayed is justice denied. Some insurers are more notorious than others at making unreasonably low offers and denying resolution of claims.
What if you are not at fault? While you are suffering the debilitating effects of the collision, the opposing insurance company is focused on finding ways to delay and deny the compensation to which you are entitled. Your (justifiable) anger is increasing, and you feel victimized all over again for an incident that wasn’t your fault in the first place!
What can you do as a responsible insurance consumer?
1. Be selective about the carrier you choose.
Do not just pick the cheapest carrier. Sometimes the least expensive carrier will be the right choice – but not always. For example, I would not have Geico coverage if it were half the cost of the next option, because you are paying for future headache. Our office has had good results with Progressive in third party liability cases.
Ask your friends and neighbors what their experience has been – especially if they have actually had to resolve a claim of some kind.
2. Opt to carry both PIP and UIM coverage.
PIP is important even if you have health insurance, because you will likely have to pay less out of your own recovery for subrogation interests. UIM is equally important because 1) many people drive without insurance, even though it is against the law, and 2) even if the other driver has minimum liability limits, the minimum limit is not nearly enough to compensate for most damages arising out of even relatively minor collisions.
3. Be informed, and be assertive.
If you are the at fault driver in a collision, be proactive with your insurance company. Be skeptical if they downplay the other side’s alleged damages. Cooperate entirely, but make sure that they are aware that you want them to settle for policy limits so that the insured person is made whole, and so that you can go on living your life. Your premium is likely to go up regardless – delaying in order to settle for less only benefits the insurer, not you.
If you are not the at fault driver, do not give any statements to the third party insurer. Contact an attorney as soon as practicable; experienced counsel will guide you through the process, and take the stress of dealing with insurance companies off of you. Have patience: Sometimes it can take years to reach a settlement or verdict, but each time someone accepts a less than reasonable settlement, it just makes it harder to obtain justice for others.
If you have been in a collision, or are having a dispute with your insurance company, call us for a free consultation to discuss your legal options.
Upcoming blog posts will cover:
1.Navigating Insurance terms: UIM, PIP, First Party, Third Party
2. Subrogation, Auto Collisions, and Personal Injury Protection
Do you have any questions about insurance law or personal injury claims? Email us at email@example.com or leave a comment suggesting topics for future posts!
Basic Process is Easy!
The basic procedure of divorce in Washington State is fairly straightforward:
Unfortunately, many cases become complicated by conflict over issues such as property division, spousal maintenance, child custody, child support or a combination. It is also an inherently high conflict situation. Conflict from the relationship itself causes conflict in the dissolution.
So, even though it is possible for a divorce to be relatively straightforward, in reality it's frequently rather complicated...and complicated can become expensive quickly.
Divorce: Litigation or Alternative Dispute Resolution?
On one end of the dissolution/custody spectrum is full litigation of all issues: property, maintenance, child custody, child support.
Pleadings are drafted and filed. Temporary Orders are requested and opposed. Papers are served (sometimes personally, and in embarrassing locations - such as work).
The stage is set for a very high conflict, prolonged, and expensive dispute. Parties are almost inevitably displeased with forking out large amounts of money for an attorney, as well as with the inevitable inconvenience caused by a Court case.
Depending on how much investigation is required, how long the case lasts, the experts needed, etc. - the price will be anywhere from $10,000.00 upwards. Really, there is no upper limit to how much a high conflict and fully litigated case can cost. A few years ago, a client had paid over 150k to previous counsel simply because of the conflict between the parties, before I had even been retained.
Sometimes litigation is an unfortunate necessity. The financial stakes may be big enough, and there is a question whether assets are being hidden. There may be a real concern of child abuse, alienation, or abusive use of conflict and the abusive parent is unwilling to admit the issue and seek help. In such a case, counsel must be both a litigator and a problem solver; aggressive use of rules, motion practice, and investigation tempered with consistent consideration of alternatives to promote cost and time efficient outcomes at every stage of litigation.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) refers broadly to any method of resolving a dispute other than traditional full litigation of all issues to trial.
The basic methods are:
Hybrid: Litigation and ADR
ADR can be proposed even before a Petition is filed. However, rarely are parties able to agree to ADR before the petition is filed. For any number of reasons, approaching your STBE to propose ADR before filing the petition may not work for you. This is especially true if there is abuse in the relationship.
The method that often provides the best balance between full litigation and pre-litigation ADR is to file the initiating documents with the Court, but immediately propose ADR to the opposing party. But....
Which method is best for you?
The best option for you depends on many different factors. The less formal dispute resolution methods may be less expensive, but are also subject to less court oversight (and thus may allow one or both parties to wrongfully withhold information). Full litigation may give you access to more information and require more court oversight, but may not be a viable option due to financial concerns.
The best method for you should be determined after a thorough consultation with an experienced and knowledgeable advocate.
Breckan Law PLLC provides initial in-office consultations for $150.00. After you contact us to schedule the consult, we ask that you email us a general statement of your situation, as well as any particular questions you want to make sure are answered, prior to the consultation. This allows us to provide the best service we can during the consultation; our goal, regardless of whether you decide you need an advocate moving forward, is for you to leave the consultation with a full understanding of your situation, the law that applies, and the best options for you to obtain the desired result.
Antonin Scalia, arguably the bane of many a left leaning jurist, was also one of the most influential legal scholars in our country's history.
He had a very strong voice on the Court, and his death will cause immediate society-changing effects. And what happens until we have another Justice? Although I hope that the process to appoint a successor goes smoothly, both the recent actions and tenor of the Senate makes me doubtful. What happens during the months (or perhaps year or more...societal structure would last at least that long...) where we have a 4-4 left versus right leaning divided court.
The system does not stop. It just does what the law is so good at doing...it applies a default mechanism to avoid a catastrophe in governance. Historical events like this cause such a nerdgasm for law/politics junkies such as myself. Ryan and I have just about overloaded on political fervor and excitement today. I mean, election year. On a debate day. We are living history. Okay. Back on topic.
So, what happens to cases currently pending before the Court?
If a decision has not been published, Justice Scalia's vote in that decision becomes void.
What does that mean as applied?
Some decisions will not be effected at all; I.e if a vote was 6-3 the decision outcome would be the same whether that decision becomes 5-3 or 6-2.
For others, they will be: "Affirmed by an equally divided Court"
By default, whoever won at the last level in the appellate process wins.
Not the most procedurally fair method, but it is better than the alternative. But the Court will not be even forever, and it remains to be seen how much deference that Court will give to "default outcomes.". I suspect that the major topics currently pending before the Court will be accepted for review again promptly upon appointment of a new Justice - but we have to live with the default outcomes in the meantime.
Justice delayed is justice denied. Topics effected by the default outcome (affirmed by an equally divided court) include: ACA contraceptive mandate, the legality of mandatory union dues, and whether legislative districts can be apportioned by total (rather than voter only) population under the Equal Protection Clause of the U.S. Const.) and the procedural challenge to the Obama administration’s immigration policy.
Permanent effects often come from temporary situations. Let's hope as Republican Senator Lindsay Graham said earlier tonight, that if the President selects a qualified candidate, he would vote to confirm. All politicians who refuse to give due and careful consideration to any qualified nominee are in derogation of duty, and affirmatively damaging our country.
What to do in case of an accident
1. Always call for assistance.
Even if you can drive after the collision, it is critical that you get proof of the date, time, and other information regarding the collision. Insurance companies will look for any excuse to reduce, delay, and deny your claim. A police report is essential to prove the facts of the crash; even if an officer does not come to the scene, an insurer will use the fact that you didn't call as an excuse to unreasonably delay, deny, and reduce your claim for damages.
2. Exchange and Document.
Always exchange insurance information with the other driver. Get the driver’s name, address, and phone number, as well as their car insurance policy number. Document by taking pictures at the scene. Take pictures of all involved vehicles, including both damaged and undamaged areas. Also take pictures of the scene of the collision; traffic conditions, road conditions, weather, and other factors are important to document.
3. Don't Give Statements to the Other Driver's Insurance Company.
You may quickly begin receiving calls and messages from the other driver's insurance company, purportedly to "gather information" to "properly evaluate the claim." Statements are not meant to gather information to “properly evaluate the claim;” adjusters gather statements to find excuses to reduce, delay, and deny your valid claim. You have no duty to speak with them – don’t get bullied! Better yet, hire counsel and avoid the stress and problem altogether: An insurer may not speak directly with a represented claimant.
4. DO Cooperate with your OWN insurance company.
You have a contractual duty in your policy of insurance to cooperate with your own insurer, which generally includes a duty to provide information about the collision. Do not downplay your injuries. State the basic facts of the collision. Do not offer information that is not asked for. Answer only the question that is asked. Your own insurer is supposed to act with your best interests in mind; but, all too frequently, we see first person insurers unreasonably reducing, delaying, and denying claims for personal injury protection (PIP) and uninsured motorists claims (UIM). The safest bet is to report the accident, and immediately hire counsel to help you navigate the entire claims process – including communicating with your own insurer.
5. Get Medical Care (Even if you don't think you are hurt)
Nearly every collision causes some injury. Strained and pulled muscles and ligaments (“Soft tissue injuries”) are the most common; our bodies are not meant to be banged around and whiplashed as happens in nearly every crash.
Soft tissue injuries are frequently downplayed by insurers, but they often take months of care to recover. Many people do not realize how hurt they are until days after a collision when they begin to feel their injuries more acutely. Later on, an insurer will use your delay in getting medical treatment as a reason to reduce, delay, and/or deny your claim.
6. Call a personal injury attorney who has experience with insurers.
Call a personal injury attorney who has experience dealing with insurance companies, and is familiar with your state’s insurance law. For example, in Washington, that would include the Insurance Fair Conduct Act and the Consumer Protection Act.
Breckan Law has the experience and knowledge to obtain favorable settlements, or, if necessary, take your case to litigation if the insurer will not settle for a reasonable amount.
Initial consultations for potential personal injury clients are complimentary.
As soon as you become our client, we assume the stress and pressure of communicating with the insurers so you can focus on your recovery and getting on with your life.
Nothing contained herein should be construed or replied upon as legal advice. Information provided herein may not be applicable to your unique situation. Nothing contained herein creates and attorney client relationship. Consult an attorney to discuss your situation.
JZK Inc. v. Virginia Coverdale
We appealed the June 2013 summary judgment ruling in favor of JZK, Inc. The lower court's ruling found that, as a matter of law, Ms. Coverdale breached a contract which prohibits the release of "any information" participants learn while attending events at Plaintiff's facility. We believe that allowing any for profit corporation to contractually bind its customers to secrecy violates public policy. Further, a company cannot bypass established trademark, copyright, and patent law to transform unprotected information into protected intellectual property via a clause in a boilerplate contract.
After two years of painstakingly making our way through the appeals wait list, Division II of the Washington Court of Appeals heard oral argument on September 11, 2015.
Breckan Scott presented on direct, and her co-counsel, Anthony Gipe, did an exemplary rebuttal argument.
A decision could be made at any time between now and several months from now. Once a decision is made, we will update you on our blog. In the meantime, feel free to follow recent WA Supreme Court and Appellate Court cases at: https://www.courts.wa.gov/opinions/
Breckan Law PLLC