Due Process

Alternative Dispute Resolution (ADR)

Because of the backlog of cases pending in the state Superior Court judges and lawyers have explored alternatives to the traditional jury or court trial as a means to resolve civil disputes. All of these remedies require that every party to the controversy consent to their use.

Typically, when the lawyers have refined the dispute in the legal pleadings a claim is filed for inclusion on the court’s trial list, called a Certificate of Closed Pleadings. Most Judicial Districts will schedule a pre-trial or status conference. Often the lawyers will be required to cooperate in completing a scheduling order identifying time limits for discovery, depositions, disclosure of expert witnesses and eventually a proposed trial date. At the conference the judge also explores whether the case is ready for meaningful settlement discussions. Generally the parties require the completion of discovery and depositions before settlement talks can occur. There are instances however, where the cost of pursuing formal discovery mandates that the parties explore resolution before incurring costly discovery expense. Here are some of the means we utilize to explore possible resolution of a case without a jury trial:

Non Binding Mediation. This is the most popular settlement vehicle. The parties select an experienced mediator, either a sitting or retired judge or an attorney with significant mediation experience. There are also Alternative Dispute Resolution Organizations that provide mediation services. Mediation allows a time out in the litigation where the parties can freely exchange information and participate in settlement discussions that will not be binding on either side unless settlement is reached. A trained mediator will evaluate the settlement positions of each side and help to find a common ground to resolve the claim. If it is not successful the litigation continues and the information exchanged in mediation, together with the recommendations of the mediator does not come in to evidence in the eventual trial. The vast majority of cases submitted to mediation settle.

Binding Arbitration. Rather than the traditional jury trial the parties can agree to conduct the trial before a single arbitrator or a panel of three arbitrators. The American Arbitration Association provides a panel of experienced arbitrators or the parties can select a mutually agreeable arbitrator. Arbitration is an expedited means of conducting a trial. It can be scheduled at the convenience of the parties without the need to wait for a case to find its place on the court’s trial list. There are various parameters to arbitration. In most instances the parties enter into a high-low agreement. The “high” is an agreed upon cap on the award and the “low” is an agreed upon threshold. The arbitrator is not informed of these numbers. If the award exceeds the “high” then the plaintiff accepts what the “high” number is. If the award is lower than the “low” the insurance carrier pays the “low” and the case is withdrawn.

Last Best Offer Binding Arbitration is a novel concept. Each side submits a position statement and last best settlement position. The Mediator/Arbitrator selects one or the other number as the binding award. This approach forces parties to thoroughly evaluate their case to move closer to a central number,

Cases are tried before experienced fact finders can be compacted and often the parties stipulate to most of the exhibits, providing a savings in cost and time for all litigants. Arbitration brings finality as well as an earlier resolution of the case. Arbitration awards can only be appealed in very limited situations and the overwhelming majority is final on the issuance of the award.

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

Tort reform, and especially reform of our system for compensating malpractice victims, once again dominates the news. Efforts at health insurance reform have provided proponents of limits on damages and attorneys fees with a platform to demand change. The medical establishment once again blames seven-figure plaintiff’s verdicts and “greedy lawyers” for the excess costs of defensive medicine. Costs that doctors argue drive up health insurance premiums. Costs, they say, are not needed to treat you but to protect the doctor from frivolous lawsuits.

An OpEd piece in the New York Post recently cited the cost of tort verdicts, noting that 10 of the largest 100 verdicts in the nation emanated from New York City courts. Limit those damage awards; cap outrageous attorney’s contingency fees. All of this is supposed to make us healthier and save millions in litigation costs, and by extension insurance premium costs.

Here is the fallacy in those arguments. Large plaintiff’s verdicts are a reality, true; but they are not spun out of whole cloth. Juries are not running amok. Judges have not abrogated reason and lost control of their courts. Large verdicts reflect major human tragedies that have resulted from the negligence of people and institutions in which we have blindly placed our trust.

I tell prospective clients who believe they have been victimized by medical or dental mistakes that their damages are directly proportionate to the degree of neglect that can be proven and the provable consequences of that neglect. It isn’t a Lottery. Juries take their oaths seriously. Courts instruct jurors that damage awards must be fair, just and reasonable, and based on the proven facts. They are not an excessive, emotional response to tragedy.

Trial judges have the power to reduce an excessive verdict that shocks the judicial conscience by ordering what the law calls a remittitur. Defendants aggrieved by a trial court’s refusal to reduce a large verdict next have the right to ask an Appellate court to review the trial judge’s decision. When a large verdict is upheld it has been passed upon at all three of these stages.

Recently Connecticut Attorney General Richard Blumenthal has called for more transparency in the review of medical mistakes. Presently the public at large can learn very little about medical and dental errors. Typically when a patient in a hospital is injured by some act of a health provider’s negligence the hospital’s morbidity and mortality committee conducts what is called a peer review inquiry. That inquiry is veiled in secrecy.

Doctors and administrators argue that peer review must be conducted in secrecy to insure frank and open discussion of medical mistakes without fear that what is said will become fodder for some aggressive plaintiff’s lawyer in a later lawsuit.

Injured parties and their lawyers are deprived of an opportunity to learn all of the facts surrounding a tragic error. The shroud of “peer review” insulates mistakes from true scrutiny. There should be compensation for victims of medical negligence. Our courts are open for the public to monitor the doings of the judicial system. Why shouldn’t the same rules apply to the medical profession?

In a case I handled some years back an elderly patient who could not speak was sexually assaulted by a respiratory therapist in his hospital bed. The medical chart merely noted that “an incident had occurred” with no other facts, despite an extensive peer review investigation. That family had the right to transparency n the review process.

When medical and dental malpractice claims are settled insurers insist on confidentiality agreements that also provide that the claimant will not voluntarily cooperate with an investigation by the state’s Department of Public Health. Injured plaintiffs agree to these demands because they need to settle cases and no other avenue exists, short of an expensive trial. Verdicts are public information but the vast majority of malpractice claims settle without verdicts.

Voluntary settlements are also reported to the National Practitioner’s Database. Again, there is no transparency because you cannot access that information.  Insurers and credentialing or licensing entities can gain access. Why not make that public? Don’t you have the right to know if your dentist or surgeon has been sued successfully?

The Department of Public Health (DPH) recently has been exposed as a paper tiger. Egregious errors, like the fertility doc who used his own sperm to impregnate a client, receive minimal punishment.

DPH is understaffed and underfunded. In response to a recent Freedom of Information request I made about a dentist I was informed that DPH had exhausted its budget for paper supplies and couldn’t send me hard copies of the documents I was seeking!

So let’s stop blaming the lawyers and the victims. Come on docs, if we are beating up on you unfairly then unseal the secret proceedings and let’s let the public judge.

If the Catholic Church can’t keep its dirty scandals secret any longer why should the medical profession?

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

Social networking has become a new age phenomenon. Facebook, MySpace, Linkedin and Twitter have created platforms for friends, business colleagues and often strangers to connect. Users can post pictures, videos, comments and messages. The spectrum of information runs from the very private, who share limited access, to what I call the “Serial Facebookers” who chronicle every moment of  their lives, from the interesting to the inane. Facebook boasts over 300 million active users followed by MySpace with 100 million active accounts.

The advent of computer social networking has coined a new type of crime: cyber stalking. Information on where the user lives, phone numbers, schools attended, friends and activities can give the potential stalker a personal road map. Add to that a bevy of pictures, often displaying the Facebooker wasted at some frat party or describing some other social excesses. What emerges is a profile of a potential victim.

Users can limit who may access their private information by allowing access only to “friends.” Friends are people who have requested access to you and whom you approve. Information can be published only for friends but Facebook allows “Friends of friends” to access your pages. You cannot control this expansion of your cyber universe.

Future employers, your boss, your teacher and your parents can often gain access to what you believe is a side of you that you are sharing with a limited few. Routinely, in litigation we are seeking information on social networking sites about potential witnesses and adversaries. Cyber stalkers gain access to this wealth of personal information that feeds their obsessions and empowers their eventual access to their intended victims.

Recently cases have been reported where cyber stalkers have been sued or prosecuted as a result of vicious, demeaning posts. In Connecticut it is a crime to use a computer to harass or threaten another:

“Sec. 53a-183. Harassment in the second degree: Class C misdemeanor. (a) A person is guilty of harassment in the second degree when . . . with intent to harass, annoy or alarm another person, he communicates with a person by . . . computer network, in a manner likely to cause annoyance or alarm. . . .”

If the cyber stalker has a previous serious felony conviction the level of crime is elevated to Harassment int he First Degree, a five year felony.

Victims are now striking back and seeking production of social network posts and pages. In a recent federal lawsuit in Connecticut District Court Judge, Janet Arterton, ordered the production of over 650 pages of Facebook posts. The minor plaintiff had sued Miss Porter’s School claiming that she had been the victim of harassment and bullying that led to her suspension and an attempt to expel her. Her alleged taunters had reportedly used text messaging and internet posts. The plaintiff subpoenaed pages from her own Facebook account that she could no longer access and the defendants sought an order that all of the Facebook pages be produced, asserting that those posts would reveal information describing the plaintiff’s own conduct. In ordering the production of most of these pages to the defense, Judge Arterton observed: “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting. ”

Criminal sanctions, and civil damages await the cyber stalker or reckless posts. Users, and especially parents of youngsters permitted access to these sites, should understand that comments posted in the seeming safety of one’s study or dorm room that are thrown out to the cyber universe are there for all to see, for all time. As my son’s high school coach often said, “Actions have consequences.” So do computer key strokes!

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

Abuse of Power or legitimate investigation.

It was last Saturday, and I was surfing the ‘net looking for a topic for this column when I logged onto CNN.com and was intrigued by a headline about journalism students at Northwestern being investigated by the Cook County, Ill. prosecutor’s office for the role they were playing in an innocence investigation. “Students who question murder convictions under investigation.” Check the article out at (http://www.cnn.com/2009/CRIME/11/06/lapin.wrongful.conviction/index.html?eref=rss_us).

Here are the short strokes: In 2003 former Illinois Governor, George Ryan, recognizing the horrific incidence of wrongful convictions in capital cases in the past in his state, commuted the pending death row sentences to life imprisonment. In doing so, Ryan noted that half of the past 300 capital convictions in his state had been reversed for a new trial or resentencing. That, alone, was an indictment of the prosecutors in that state.

Enter Professor David Protess and his undergraduate Investigative Journalism class at Northwestern University. Prof. Protess’ budding journalists signed on for demanding projects, investigating cases of possible wrongful convictions. Going way beyond the demands of the typical college course, these youngsters got out from behind their computers to do real life investigative journalism. They hit the streets, the shady bars and back alleys in hopes of finding possible witnesses to right what they perceived as major wrongs of our justice system. Through the years they succeeded in providing the groundwork for the reversal of 11 of 50 convictions–5 awaiting execution on Illinois’ death row!

So how do the prosecutors react? In response to the work done by students investigating the conviction of Anthony McKinney, who was convicted of murder in 1978, the State’s Attorney’s office recently issued subpoenas for the students’ grade records, expense reports, and other items, in an apparent attempt to demonstrate some personal gain by these students. Why? Wouldn’t committed college students strive for good grades? Does that lessen the impact of evidence that McKinney may have been the victim of a 30 year-old injustice?

McKinney claims that his confession at that time was coerced. The Innocence Project was started at Cardozo Law School in Yeshiva University by Barry Scheck and Peter Neufeld to serve the same purpose. To date 254 wrongfully convicted inmates have been exonerated by their work. Most have spent years of their lives languishing in jail cells, forgotten by all but the closest relatives, dealing with the despair of knowing their lives have been forfeit. Imagine the desolation and sense of abandonment faced with each day that passes thinking no one really cares that you are innocent of the crime for which you have been imprisoned. Such cases are reminiscent of the 19th century French literary masterpiece by Alexandre Dumas, The Count of Monte Cristo.

Cases like these, and the 11 that Protess’ students have pursued, are not lightly reversed. The process is grueling. Even when evidence is established that casts serious doubt on the veracity of witnesses and the legitimacy of the verdict there are monumental legal hurdles. The law favors finality. At some point these convictions become virtually unassailable.

Applications for a Writ of Habeas Corpus may be based on claims of actual innocence but reviewing courts are mandated to construe the evidence in a light most favorable to upholding a jury’s verdict. Most challenges fail on this rigid legal standard. But for the advent of modern DNA testing the Innocence Project would have had little success overturning so many wrong verdicts. Instead of the knee jerk reaction of these defensive prosecutors in Illinois looking to save face, perhaps they should be applauding the efforts of these students. They have succeeded in restoring the lives of 11 people who were left with little hope. It appears instead that these lawyers are giving credence to the cynical maxim, “No good deed goes unpunished.”

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

The Fifth Amendment to the United States Constitution, among other rights, guarantees to all, due process of the law. But what is that? How does it impact your life? How does the system really work? I’m a practicing trial lawyer and my life has been dedicated to the pursuit of due process– representing those accused of crime, as well as others who have been injured by someone’s negligence. My goal here is to inform and educate you about the inner workings of the legal system and comment on interesting legal cases. I wouldn’t be disappointed if I stimulated a little controversy now and then as well. My career has spanned more than 35 years, not only as an advocate but as an educator as well, having taught both on the undergraduate level and as an adjunct professor of law. My hope is to bring some common sense meaning to complex legal issues that affect us all.

Let me tell you a little about me: I grew up on the east side of Bridgeport and come from a family with a strong tradition of law enforcement.  I watched as a youngster as my dad, then a cop, boarded the train to West Hartford for 4 years to attend UCONN Law School’s night program. He was the first cop in the state to become an attorney. He became Connecticut’s Chief Public Defender before returning to private practice and a partnership with me. Eventually he was appointed a Superior Court Judge, truly representing the American Dream. Later he returned to join me again in  the practice and eventually had the unique opportunity to see my son, Mike, join us as well. We had the privilege of being the only law firm in the state with three active generations.

My career started as a law clerk for a Connecticut Supreme Court Justice, a position that allowed me to understand the inner workings of our appellate court system and how judges think. From there, as a young lawyer, I served two terms as an alderman and held the position of President of the Common Council (now City Council) under John Mandanici, helping me gain insight into politics, Bridgeport style.

I almost didn’t make it here, however. Following two successful appearances on the All American College Show with Arthur Godfrey (how’s that for dating myself!!) I called home to tell my folks I was abandoning the idea of law school and traveling to Nashville, Tenn. to sing country music. God bless my dad, he never tried to talk me out of it, telling me that if I didn’t try that I might always regret it. After nearly a year of missed musical opportunities it was back to Bridgeport with my young bride (now my wife of 40 years) and UCONN Law. We’ve raised 5 sons and now have 8 grandkids to keep us busy. I still plunk away on the guitar and banjo now and then, but never regretted my flirtation with a music career nor the decision to return to my real calling–the law. I look back at my brief career on the musical stage and credit some of my success in the courtroom to learning to be a performer. Like Billy Flynn, the fictional lawyer in the musical, Chicago, when he ruffles his hair, undoes his tie and sings: “Give ‘em the old razzle dazzle, razzle dazzle ‘em” there is a little Billy Flynn in every successful trial lawyer.

I’ve appeared frequently as a legal analyst on CourtTV (now TruTV) and enjoy helping average people understand the morass that is our justice system. I tell jurors in every closing argument that despite its faults, ours is the best system of justice in any country. While lawyers are not all that popular we do serve an important role. If not for the courts and the lawyers that serve there, we would still resort to sticks and physical combat to settle disputes. So follow along, enjoy the commentary and send me some comments or emails. If you have questions about the law in general, ask I’ll try to answer.

See you in Court!!

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.

“Respondeat Superior” and the Catholic Church—part of the Latin Mass from the Church’s rich tradition? No, it is the doctrine of vicarious liability that has forced the Catholic Church to pay millions in settlements to victims of clergy sexual abuse. Recently, this sordid chapter in the Church’s history has made news when the United States Supreme Court refused to grant a stay in the efforts to unseal over 12,000 pages of court records in the Bridgeport Diocese sexual abuse cases. The Diocese fought to keep sealed the records of the cases that led to more than 21 million dollars in settlements. Four news organizations have battled to unseal the files, citing the public’s right to know. Some victims’ rights advocates have hailed the rulings, although that appears short sighted to me. Unsealing these files not only exposes the intimate details that have rocked the Church but also unmasks many of the victims whose lives have been devastated.

The Diocese of Bridgeport was not alone in this. The Hartford Diocese paid over 22 million in claims and the Diocese of Norwich has also paid millions for the sexual escapades of its clergy. The question arises: why does the Church as an institution have responsibility? Aren’t these the acts of a few rogue clerics who violated their sacred oaths of celibacy and human morality? Church doctrine certainly condemns this type of conduct, not only by its priests but also the laity. The centerpiece of the institutional exposure of the Catholic Church, throughout the country, is the doctrine of Respondeat Superior (Latin for “Let the master answer”) otherwise known as vicarious liability.

In the common law this was known as the master-servant rule; i.e., the master is responsible for the wrongs of his servant. In modern times “Employer” has been substituted for the master and “employee” for the servant. The rule is not without its limits. It does not create an absolute warranty for all the actions of an employee. Not all wrongs committed by the employee become the financial responsibility of the employer. Under current civil law the tortious (civil wrong) act must be committed by one acting as the agent of another, and within the scope of employment. Generally those actions must be within the confines of the employee’s duties. This does not mean that the Church, in these cases, had to have directed the priests in their wrongful acts. Rather, the acts must have been committed by the priests in the apparent discharge of their functions.
So many of these cases involved either penitents seeking comfort or altar servers and other children with close personal relationships with the clergy. The clerics then used those relationships to recruit and seduce their young victims. Few if any involved physical harm. The greater damage was a loss of faith and the emotional devastation that these victims dragged through difficult chapters of their adult lives.

Such acts of abuse were never accompanied by public displays. The mere fact that the abuser wore the outward trappings of a priest, the cassock or collar, in and of itself, did not give rise to the exposure of the institutional Church. Had the Church hierarchy been unaware of the conduct of an abuser that Diocese would not have been exposed to vicarious liability. What these lawsuits displayed was a callous posture of ignoring the warnings that its priests were predators, often transferring an offender from one parish to another after complaints had arisen. What the unsealing of these records will do is expose the full facts about the archaic practices of the Church when it became aware that a priest was acting inappropriately.