Mental Health & Lawyers

        Wishing you a beautiful Thanksgiving week ahead! Hope you stay warm, safe, and healthy this Thanksgiving holiday. I also wish those who have exams this week all the best! You know you can do well on your exam, you’re a smart law student! Keep going! That being said, I want to focus this week’s blog post on mental health. The topic of mental health has been in the shadows for a while and all that is doing to us as a society is weakening us, causing us to be helpless for those who need help, and sometimes even brushing it off as if there is no such thing as mental health.

I’m no expert on mental health, so I did some research. “Mental health includes our emotional, psychological, and social well-being. It affects how we think, feel, and act. It also helps determine how we handle stress, relate to others, and make choices.” (MentalHealth.gov). It is a common misconception that mental illness has to do with just brain tumors, and other medical brain conditions, however, mental health is beyond that. It includes, “depression, anxiety, eating disorders, and other disorders that affect your mood, thinking and behavior.” (Mayo Clinic). 

        Mental health issues in the legal profession are overlooked and undermined. It’s common for lawyers to put others before themselves and try to fix others’ problems when they themselves are struggling. It’s so easy for lawyers to overwork and take very little care of themselves. It’s our nature. We’re in a demanding profession and with that comes its struggles. It is crucial for law students and lawyers to recognize that struggle and come to support each other. One may not even know that a fellow law student or lawyer is struggling with their mental health. We’re so good at putting ourselves aside and conveying ourselves in a good manner just for the sake of our clients, our families, our friends, our community. We need to learn to put ourselves first, give our mental health priority, and be aware of those around us who may be struggling with their mental health. 

Using Mayo Clinic as a reference, some signs and symptoms of mental illness include:

1. Inability to cope with daily problems or stress;

2. Major changes in eating habits;

3. Extreme mood changes of highs and lows;

4. Significant tiredness, low energy, or problems sleeping; and

5. Excessive anger, hostility or violence.

        When we suffer from such symptoms, it is important to pause and evaluate ourselves. It’s important to seek help when you feel like you are not yourself. Times can be stressful around exam season or when you have trial coming up, and especially during such a pandemic. But there are resources out there that can help. In Massachusetts, we are very fortunate to have an organization whose mission is to support lawyers and law students. In most cases, their services are free of charge. Lawyers Concerned for Lawyers (LCL) stated mission is, “to promote well-being and resilience in the legal community, improve lives, nurture competence, and elevate the standing of the legal profession…to fulfill this mission, LCL provides free and confidential mental health resources, addiction recovery support, and practice management services.” LCL has visited MSLAW in the past to support students and talk about their services. Anyone who feels they need some additional support during these stressful times should reach out to them. You can learn all about their services through their website at https://www.lclma.org.   

        Whether it be speaking to a friend about it, going to a therapist, doing activities that help you relax, or surrounding yourself with people that will support you and help you grow, you should do what you have to in order to take care of yourself. 

Give yourself priority. You deserve to be happy.

The Banana Peel that Led to a Rotator Cuff Surgery

        I know you must be stressed and overwhelmed with it being exam season combined with being in the midst of an ongoing pandemic. I want to remind you that everything will be okay; you will be okay; you will do well on your exams; you will graduate; and you will be well on your way to becoming a successful attorney. Only positive thoughts! I came across a very interesting case, one involving a banana peel! I thought you would be interested too, so give it a read!

In this case, the Plaintiff is a 53-year-old iron worker who was working at a construction site. On one particular occasion, the worker left his work area to get some supplies. On his way to get the supplies, he passed by an elevator that was in the, “up position with someone working on it”. The worker’s attention was drawn towards the mechanic working on the elevator. However, in the meantime, the worker slipped and fell on a banana peel. The Plaintiff suffered a shoulder injury which required a rotator cuff surgery and eventually, a full shoulder replacement. Unfortunately, the Plaintiff’s doctors said that the worker was permanently disabled from iron work.

The Plaintiff’s attorney filed an action against the prime contractor of the premises, claiming that the prime contractor had a duty to maintain the jobsite in a reasonably safe condition and free from all foreseeable hazard. The attorney further claimed that the prime contractor breached his duty by: 

(1) failing to properly maintain the jobsite;

(2) failing to perform proper work and site inspections; 

(3) failing to provide trash receptacles on the jobsite;

(4) allowing workers on the site to throw trash on the ground;

(5) failing to remedy any dangers on the jobsite; 

(6) failing to ensure safe means of ingress and egress to designated work areas; and 

(7) by failing to ensure that work was completed on the jobsite in a reasonably safe manner. 

        Defense argued that it, “did not and should not have had notice of the banana peel on the ground and that the Plaintiff should have been aware of where he was walking.” Eventually, the Plaintiff accepted a settlement totaling 1.6 million.

(Massachusetts Lawyers Weekly, Volume 49, No. 44)

What Are Your Thoughts on This Case? 

No-Contest Clauses in Wills and Trusts

        Wishing you a beautiful start to a new, fresh week in November! Keep going, the semester is coming to an end sooner than you think! To keep you informed about current cases and what has been decided, this week I have a case regarding a will that has a no-contest clause in it. I found it to be very interesting to read because we actually learned all about no-contest clauses in my Wills and Trusts class not too long ago. Everyone, whether you are the Testator of a will or the beneficiary, should be aware of what the no-contest clause necessitates. Happy reading!

Capobianco v. Dischino, 98 Mass. App. Ct. 1101 (2020), is a recent Appeals Court case where the court upheld the enforceability of no-contest clauses in Massachusetts wills and trusts. In this case, a trust beneficiary filed a complaint seeking to remove the trustees, appoint himself as the sole trustee, stop the trustee from depleting trust assets, and request a trust accounting. The trust actually contained a no-contest clause which provides, “If any person attempts to contest or oppose the validity of this agreement, or any of its provisions, commences, continues, or prosecutes any legal proceedings to set this agreement aside, whether directly or indirectly, then that person will forfeit his or her share, cease to have any right or interest in the trust property, and will, for purposes of this agreement, be deemed to have predeceased the settlors.” 

In the states where no-contest clauses are permissible, courts have the ability to forfeit the challenger’s interest in the trust. “A court will often enforce a no-contest clause when a beneficiary challenges the validity of the instrument itself or its substantive provisions. In contrast, courts often decline to enforce a no-contest clause when a beneficiary is seeking an interpretation of the will or trust”. 

In the present case of Capobianco, the beneficiary was unhappy with the way the trustees were handling their duties, exactly why he filed suit. The beneficiary had the option to bring an action for breach of fiduciary duty and seek to remove the trustees, but instead, the beneficiary decided to, “file suit asking the Probate Court to disregard multiple terms of the trust, name him as the sole trustee, appoint him as the sole manager of two LLCs controlled by the trust, and prevent the current trustees from administering the trust while the litigation was pending”. 

The trustees brought a declaratory judgement to enforce the no-contest clause and the court granted such judgement even though the trustees did not have standing because they had no personal interests in the matter while serving as trustees. The court found that the beneficiary triggered the no-contest clause with his lawsuit, “because he sought to disregard the provisions of the trust governing the process for how trustees are appointed and the identity of the successor trustees”. 

The court stated that they will, “construe no-contest clauses narrowly because the law generally disfavors forfeitures. However, in this case, the trust instrument specifically prohibited a beneficiary from serving as the sole trustee of the trust”.

MA Lawyers Weekly Volume 49, No. 43. 

 Do You Think the No-Contest Clause is Fair?

Lawsuit that Arises from an International Ballet Dance Competition

    Wow, first week of November! Just one more month away from the semester’s end. Keep up the hard work! This week, I want to bring to your attention a case involving two insurance companies who were relieved from liability in a tort lawsuit. Happy Reading!

The Defendant is the owner of an international ballet academy. The Defendant worked as an instructor at a Dance Studio which provided ballet lessons. The Plaintiff was a student taking ballet lessons at the Dance Studio. On one occasion, the Defendant convinced the Plaintiff to compete in the World Ballet Competition in Romania in March 2014. This was an event that was co-founded by the Defendant and the Defendant even served as a judge of the Competition.

On the flight to Romania, the Plaintiff claims the Defendant groped her under her clothes and once in Romania, repeatedly raped her in her room and put a drug in her drinks. The Plaintiff also alleged that the Defendant, “took advantage of her vulnerable position traveling in a foreign country where she did not speak the language”. The Plaintiff sued the Defendant in Superior court alleging sexual assault, intentional infliction of emotional distress, false imprisonment, and negligence. The Defendant denied these allegations and in return, filed a counterclaim alleging defamation, tortious interference, and abuse of process. 

The Defendant thereafter brought action against National Casualty (his employer’s insurance company) and Safety Insurance, Co. (his homeowner’s insurance) seeking a, “declaration that they had a duty to defend and indemnify”. National Casualty Insurance argued that it had no duty to defend the Defendant because, “the alleged misconduct fell outside the scope” of the Defendant’s employment duties. Specifically, the World Ballet Competition in Romania was beyond the interest of the Dance Studio the Defendant was an instructor at, and therefore, had no obligation to defend the Defendant for any claims brought against him related in this case. The National Casualty further stated that, “those alleged accidents self-evidently served only the [Defendant’s] interests and therefore, he cannot claim status as an insured party on that basis”. 

Once that attempt failed, the Defendant resorted to his homeowner’s insurance, Safety Insurance, Co.; however, the Defendant’s homeowner’s policy states an exception which prevents coverage of “business pursuits”. The court found that, “it is uncontested that any injuries suffered by [the Defendant’s] alleged acts occurred out of the country on a work-related trip…under these circumstances, regardless of whether [the Defendant’s] alleged actions were motivated by personal or business reasons, any resulting injuries arose out of or in connection with [the Defendant’s] business pursuits, and thus are excluded”. Therefore, both the National Casualty and Safety Insurance, Co. were relieved from liability. 

Massachusetts Lawyer’s Weekly Volume 49, No. 42   

Do You Believe the Right Decision was Made by the Court?