Due Process

This piece ran several years ago on the editorial page of the Sunday Post. I wanted to share it once again. Perhaps you’ve read it before. If not I hope it brings some fond memories of past Christmases to you as well.
Merry Christmas

I sat the other evening with my youngest son, Rich watching Christmas movies and having one of our ever increasing in frequency talks. Richie was a late life surprise as we learned that my wife and I were expecting our fifth son at the age of 43. There is a 10 year difference between him and the next youngest, Tim. Everyone else is grown and out of the house. People told us that having a child at that age would keep us young. It’s true, although at Little League and Peewee football we always looked like the grandparents. Being born to older parents has its rewards. Hopefully, we have gotten it all figured out by now, although we sometimes wonder. But what he missed is the chance to know his grandfathers better.

My wife’s Dad died when he was 8, and Rich’s memories of him are strained by the time that has passed. Kathy’s Dad was a man of little education, leaving school in the 8^th grade to work to help his family. John Mucci was a simple man with a gift. He could play the trumpet. With no formal education outside of music he spent most of his later adult life painting nosecones for then Avco-Lycoming in Stratford. From him I learned that for a union man there was one source for all knowledge more sacred than any encyclopedia: the guys in the shop. No matter the topic once he invoked “the guys in the shop said. . .” all debate ended. I found myself at times trying to make a point about the law, presumptuous of me with four years of college and three years of law school. No matter, once “the guys in the shop” spoke it was akin to the Pope speaking ex cathedra.

He was a diminutive figure with this marvelous mane of white hair. I met my wife when we were 16 years old. I recall the rare times he permitted her to date at that young age, going to their modest home across the street from the cemetery in Stratford, on a Saturday. There he would be gussied up in his tuxedo ready to play another gig. His was the big band sound of the era of Tommy Dorsey. He had studied trumpet in New York City, a rare accomplishment for the son of immigrant parents.

His other claim to fame was his cousin, Lt. Col. Henry Mucci, the founder of the Army Rangers. The “Colonel” as everyone around Bridgeport called him was recently memorialized in the Book, The Ghost Soldiers, the basis for the recent movie, The Great Raid. The Colonel lived with my father-in-law’s family as a youngster before his appointment to West Point. It was a great source of pride in John Mucci’s life that the State named the lower section of Rte 8 in Bridgeport as the Colonel Henry Mucci Highway.

This little Italian leprechaun could blow that horn with the best of any of them. I recall sitting with him as he would listen to a recording and then write out each melody or harmony line for the various instruments like a stenographer taking dictation. Each time we hear a great horn player we think back to this marvelous little man and his amazing gift.

Richie spent two more years with my Dad before he passed on. We sat and reminisced about him the other night as we watched the Jimmy Stewart classic, It’s a Wonderful Life. It was my Dad’s favorite movie. In particular he loved the English character actor, Henry Travers, who played Clarence Oddbody, the would be guardian angel trying to earn his wings. In his later years my dad actually favored Clarence in his likeness.

In contrast to the life my father-in-law led, my dad pursued a different dream. He labored as a Bridgeport cop for 14 years, 9 of which he spent in night school– first at the University of Bridgeport for 5 years; then a wearying 4 year trek to Hartford to UConn law school, eventually becoming the first cop in Connecticut to become a lawyer. Richie got to go fishing and attend Giant games with his grandpa. In his later years we spent a great deal of time together; simple time on the boat or just sitting in front of the tube on a Sunday afternoon.

Sitting watching Jimmy Stewart’s character, George Bailey lament to Clarence Oddbody I shared with Rich one of my fondest Christmas memories. I was raised in an era where Christmas wasn’t yet a major marketing extravaganza. It was a simple time in the mid-fifties and we were literally as poor as church mice. We lived in a third floor attic apartment through the kindness of my grandparents, who lived downstairs. Each Christmas eve my dad walked the beat on the East side of Bridgeport. We would go to sleep that night, no Christmas tree in the modest living room. We would awake Christmas morning to what was a true Christmas miracle. There was the tree with modest presents. No Nintendo Wii or Playstation3. It didn’t matter; to us it was still a miracle. Every Christmas eve for nine years it was the same. My dad would finish his shift and a local merchant who sold Christmas trees would give him one of the last stragglers to take home. To us it was the Rockefeller Center tree come to life. Dad, being a true Irishman, of course would stop at the local pub to hoist a few before finally arriving, perhaps with a little too much Christmas cheer in him ready to transform that tiny living room into our Christmas miracle.

Each of these men, in his own way, brought a richness to Richie’s young life. As time passes I am now becoming the grey bearded Papa to a growing brood of grandchildren; six granddaughters and two grandsons, with no end in sight. Hopefully, as the years pass and they become young men and women, there will be some special memory of this Papa they will carry with them. For now we cherish the memories of these two marvelous men.

Several weeks ago I wrote about the importance of designating yourself as an organ donor. That post is still in the archives if you would like to revisit it for information on how to make that designation either on your driver’s license or by a health care instructions document. The Uniform Anatomical Gift Act also describes the procedure for live donation. Live donors are also needed to help save lives. There are some amazing stories of selfless people who are willing to undergo major surgery to donate a kidney or a portion of their liver to give another a chance to live.

I learned recently about a retired, well known physician who decided to donate a kidney simply because he had lived a fortunate life and could do just as well on one. He didn’t designate it to a family member or some friend. He simply said give it to whomever needs it. He didn’t do it for accolades. It was the true act of a man who had dedicated his life to healing others.

The Christmas story I want to tell, however, is about a young 16 year-old, my cousin Connor Aylward. Connor is the youngest of three, but the only one born with cystic fibrosis. It was the perfect storm of genetics. His mom and dad both carried the CF gene. His sisters were fortunate, but Connor drew the short straw. I have watched this youngster deal with the daily trials that such a debilitating disease imposes: special enzymes needed to aid his digestion and endless percussive treatments to keep his fragile lungs clear. Through it all he has had an amazing grace and presence about him that belies his young years and the ravages of this disease. He has been interviewed on NPR and can eloquently speak about his condition without invoking pity. His is a story of courage.

Each year his mom, dad and sisters would enlist family and friends for the CF Walk-athon. We are Connor’s Crew. Each year Connor makes an appearance, his infectious smile and wit inspiring all of us to help raise money to find a cure. CF has a timeline it imposes. It’s arbitrary and unfair. Some live longer than others. Some battle additional insults to their health. Connor hit the trifecta. Added to his CF was diabetes and most recently, impending liver failure. Years of extensive medication regimens had wracked his liver. Each time it suffered an infarct it tried to repair itself. The liver has amazing regenerative powers. People can donate as much as 60% of their liver and it will regrow like a chameleon that loses its tail or a crab that drops a claw.

Unfortunately for Connor the damage to his liver was unrepairable. That organ had swelled to a size larger than a soccer ball. The result was a distended abdomen that compressed his already compromised lungs, making each breath difficult. He never complained. I’m sure in his quiet moments at home with his family he had his tough days; but he never showed that to the rest of us. Constant trips to the hospital kept him out of school most of the year. He became the king of Facebook, happy to exchange greetings with his friends.

That time-line was growing increasingly shorter and the only salvation for him was a liver transplant. He went to the University of Pittsburgh and was accepted into their transplant program, but only for a posthumous donor. The family was told that he would have to be there within 8 hours of receiving a call that a liver was available. The cost was staggering. After what insurance was willing to pay the family would be left with nearly a $200,000.00 bill. His medications alone costs hundreds of dollars each month. A massive fund-raising effort by family members made a dent in that, but it is far short of what is needed.

At Yale he was eligible for a live donor transplant. But where to find a willing donor? His uncle, a world class triathlete, offered, but he was several years beyond the acceptable age to be a donor, despite having the body of a man twenty years his junior. Others were not a complete match. The time-line was growing desperately shorter. His doctor, Marie Egan had worked all of her medical magic to keep him going but she could not hold back the inevitable much longer. Then a miracle occurred. A live donor had been located and approved. It wasn’t a family member. Instead it was a 20 year-old college student, I’ll call her Kerry because she wants to remain anonymous. She had attended school with one of his sisters. For years her family had donated to various fund-raising activities for Connor. This amazing young woman took a medical leave from college and agreed to undergo a grueling surgery to give Connor the chance to live!

Two weeks ago they were wheeled into adjoining operating rooms by the Yale New Haven Hospital transplantation team. Connor was so debilitated that the team delayed surgery on the donor until they were certain they could stabilize Connor under the anesthesia. Dr. Sukru Emre, director of the transplantation center, led a team of over twenty doctors and nurses. Together they took a piece of Kerry’s liver and removed the bloated, distended dying organ from Connor. Within a short time after the nearly ten hour procedure that piece of Kerry’s liver began to produce bile for Connor. He was moved to the ICU in critical condition. The next seven days would determine whether he would survive. When his parents saw him he had twenty different IV’s and a breathing tube. They were told there were six hurdles he had to pass. He made it past five but the sixth was a problem. He rallied. Every moment was filled with pain. Other than immediate family, only one other visitor was permitted to see him, Kerry. Each day they wheeled her into his room and she exhorted him to fight through the pain.

After one week, the IV’s gone, he was moved to a step down unit. His color was normal for the first time in years. He could take a deeper breath than he ever could remember, since the bloated liver was no longer impinging on his lungs. Every night his parents remained with him. They had been told to expect that he could remain hospitalized for up to three months. Ten days after his surgery Dr. Emre told his mom that Connor was going home! He could be cared for there as well as he could be in the hospital.

Today he is on the mend and back up on Facebook every day. His parents had always prayed for a miracle. This year God granted those prayers; but it all began with Kerry. Hers was the true spirit of Christmas; the true gift of life. There are so many others like Connor who may not be as fortunate.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

It’s that time of year. The invitations are out and the party plans are moving forward. You decide to stay home this year and host your friends for a blow out New Years bash. First it’s off to the liquor store for the fixings for pear martinis and mojitos. Throw in some magnums of champagne for that New Years toast, and plenty of great Cabernet to serve with the filet mignon. Someone else suggests a bottle of Patron tequila. Add the party hats and funny noise makers and the party is ready to rock.

Your friends are ready to party. First, the pear martinis and mojitos with hors d’oeuvres. Someone suggests some chilled shots of Patron. Dinner goes well and the Cab is freely flowing. By the time you pop the champagne everyone is more than a little silly and tipsy. As Dick Clark is winding down on TV; one more night cap and all the revelers reach for their car keys to head home. Sound familiar? It should; it plays out everywhere on this festive night.

Another great New Years; or is it? Hours later you are awakened by the phone. Your buddy Joe, the party guy, was in an accident. He hit another car and caused some serious injuries. You, of course are concerned, “thank God I didn’t have to drive anywhere tonight; that could have been me.” Weeks later a state marshal knocks on your door and hands you a civil summons; you are being sued by the person your friend injured. “But how can that be?” You think, “I wasn’t driving the car.”

Drunk drivers cause serious injuries and deaths each holiday season. In a recent study by the Substance Abuse and Mental Health Services Administration, 30 million Americans admitted to driving while intoxicated; 10 million people confessed to driving under the influence of illegal drugs. We have all seen the statistics on DUI fatalities and serious injuries. But here you are sitting with the lawyer your insurance company provided trying to understand why you are a party to your friend’s lawsuit. You tell the lawyer that all you did was put the booze on the bar. You didn’t hand a glass to your intoxicated friend. “How can I be responsible for what Joe drank?”

For years judges have wrestled with the concept of imposing civil liability on the person or business that provided liquor to someone who ultimately injures another in the consequence of their intoxication. For the tavern owner the Dram Shop Act was created. It provides for a civil penalty of up to $250,000.00 that can be imposed by a jury against a bar that provides liquor to an obviously intoxicated person. The thornier legal issue was the responsibility of a social host when an intoxicated guest causes injury to another. As the incidents of alcohol related injuries escalate judges are expanding the exposure of social hosts. A social host could be legally responsible if the provision of alcohol could be proven to be a reckless act. To do so there must be actual proof that the host acted in a willful and wanton manner in knowingly serving booze to an intoxicated person. Plaintiffs had to prove that the person served was demonstrably intoxicated and that the social host knew that and poured more drinks anyway.

For years defense lawyers have successfully argued that the act of the intoxicated person actually imbibing the drink is what the law calls an intervening cause. As such, it was viewed as breaking the chain of legal cause, or “proximate cause” between the provision of the drink and the later accident that occurred. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser.For decades this argument was successful. No more! In a forward thinking case, New London Superior Court Judge Robert Martin has now lowered the bar (pardon the pun).

Judge Martin has rejected that argument, allowing a case against a social host to proceed to trial. He has ruled “that the voluntary consumption of alcohol by the [drunk driver] no longer serves to bar an action against a social host for the negligent service of alcohol to an adult.” So party on this year but remember, every drink you pour leads to more than just a buzz for the partygoers. Be responsible and really have a Happy New Year.

Rich Meehan is a nationally certified civil and criminal trial specialist and the senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Ever wonder what happens to those emails you would rather no one else reads? You know, the ones some friend of a friend thought were funny despite being off-color. You are unwittingly on the thread because someone thought you would find it witty or titillating. You didn’t read it but deleted it; or did you. How about some very private information you are sharing with a confidante, your doctor, your lawyer or your significant other? You probably thought those were only being read by the intended recipient. Well apparently not. There was an antiquated piece of legislation known as the Stored Communications Act (SCA) that essentially proclaimed that if an unopened electronic communication was stored on an internet provider’s server for more than 6 months it was considered to be abandoned. The effect was that the Government had the right to inspect and read these “abandoned” messages without adhering to the proscriptions of the Fourth amendment to the United States Constitution.

The Fourth Amendment protects us from government intrusion into areas where we have a reasonable expectation of privacy. That intrusion is only permitted if the government can demonstrate that there are reasonable grounds to believe that contraband or the fruits of a crime are located in a particular place. The Amendment requires either a search warrant issued by a neutral and detached magistrate or one of several very limited exceptions to the warrant requirement. Under the SCA Congress essentially eliminated the constitutional requirement of a search warrant if the electronic communication fit certain guidelines. This allowed wholesale inspections of personal emails.

Under Fourth Amendment caselaw if property is considered abandoned the former owner no longer has the constitutionally protected reasonable expectation of privacy. Thus, there is no Fourth Amendment protection. The typical example is the criminal who disposes of some contraband by putting it out on the curb with the trash. The police are free to go “dumpster diving” and seize the trash and its incriminating contents without obtaining a search warrant.

The SCA was passed in 1986. Think back to that time nearly a quarter century ago and consider how few people relied on electronic means of communication. We weren’t texting and there were no social networks. We did things like make phone calls and actually speak to someone or wrote letters that needed stamps and a postman to deliver. But there were electronic communications then, although in their infancy.

Recently the Sixth Circuit Court of Appeals held key provisions of the SCA to be unconstitutional, determining that we do have a continued expectation of privacy in emails stored on our internet provider’s server. The case involved the prosecution of Steven Warshak. Old Steve isn’t exactly a household name, until you realize that he was the creator of Smiling Bob the fictional spokesman for Enzyte, an herbal sexual enhancement supplement. Apparently Steve and company dummied up medical research studies and user satisfaction surveys that propelled the sales of Enzyte into the multi-millions. A prolific emailer, Steve contested the Government’s seizure of over 27,000 intra-company emails, many of which contained incriminating admissions. Steve, his mother Harriet, and their company were convicted of dozens of federal crimes, and appealed.

Judge Danny Boggs of the Court of Appeals, while not impressed with the enhancements promised by Smiling Bob, nonetheless was impressed with Warshak’s arguments that the SCA offended the Fourth Amendment. The result is that the search warrants are now required to seize these private communications even though they are stored on a third party’s servers. For the legal scholars among you Judge Boggs’ opinion is a good read.

So thanks to Warshak and his hyper-stimulated alter ego, Smiling Bob, we aren’t a nation of sexual super heroes, “swelling with pride”, but we can rest a little easier that the Government has to play by the rules set forth in our Constitution before it can read those emails you wouldn’t want published on Facebook.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

At this time of year we all spend so much time trying to think of appropriate gifts for friends and family. The holiday season fosters the spirit of giving in so many of us. What greater gift can any of us provide than the gift of life? Every 11 minutes another person is added to the transplant list. For them time is winding down. Without a donor 18 people on that list will die every day. The list of potential organs for donation includes: heart, lungs, kidneys, pancreas, liver, small bowel, bone and associated tendons, blood vessels, heart valves, skin and corneas. Tissue donations are of even greater use. There are a number of websites that describe the process and answer important questions. As well, there are simple steps set out to register as an organ donor. The easiest is through the Department of Motor Vehicles. A red heart icon on your driver’s license identifies you as a donor. The New England Donor Bank website provides answers to many questions. Concerns about denial of medical services or disfigurement can be allayed by accessing their site. Every donor can positively affect over 50 lives.

Connecticut has recently amended its anatomical donation statutes, clearly defining the protocol for a donor or a donor’s family to make a bequest of this precious gift. Known as the Revised Uniform Anatomical Gift Act, Public Act 10-123 became effective October 1, 2010. The Act defines how and who may make bequests of anatomical gifts. Donor rights are clearly defined, including the right to revoke a prior designation as a donor. An anatomical gift may be made to: “(1) A hospital; accredited medical school, dental school, college or university; organ procurement organization; or other appropriate person, for research or education; (2) . . . a named individual designated by the person making the anatomical gift if the individual is the recipient of the part; or (3) an eye bank or tissue bank.”

If an anatomical gift is not specified for a particular recipient, ” . . . but identifies the purpose for which an anatomical gift may be used, the following provisions shall apply: (1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank; (2) if the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank; (3) if the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ; and (4) if the part is an organ, an eye or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.”

Anyone at least 18 years old can execute a document that contains health care instructions, the appointment of a health care representative, the designation of a conservator of the person for future incapacity and a document of anatomical gift. The document must be signed in the presence of two witnesses. No matter your age or state of health, everyone should create such a document.

In 2003 we lost my three month old grandson, Christian, to SIDS (Sudden Infant death Syndrome). My son and daughter-in-law were contacted by the donor bank asking for the donation of his heart valves to save the life of another infant. Through the years the thought that Christian helped save a life has been an immeasurable comfort.

If you give no other gift this holiday season register as a donor and give the gift of life.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Now that the judgment of death has been imposed on Steven Hayes the next round of death penalty challenges will begin. First, there is the mandatory appeal to the Connecticut Supreme Court. Even if Hayes, like Michael Ross, wants to die (recall that Hayes’ lawyers argued that he wants to commit “suicide by state”) the initial appeal cannot be waived or withdrawn. That appeal may only raise issues that were argued either at the trial or in pre-trial motions. This is known as a direct appeal. Issues that require evidence that was not part of the trial court record must be raised in what the law refers to as a collateral attack on the proceedings, by a writ of habeas corpus. There are strict procedural rules as well.

A defendant must exhaust his procedural remedies in a particular order. Any issue based on the trial record must be raised on direct appeal before it can be considered in a habeas petition. Once Hayes’ initial appeal is decided the habeas rounds will begin. A brief review of the post conviction challenges raised by and on behalf of Michael Ross will illustrate the long path this process may take. While other death row inmates are still actively pursuing challenges, the Ross, like Hayes, wanted to die.

In 1987, Michael Ross was convicted of six counts of capital felony and, after a separate penalty phase hearing was sentenced to death on each count. On appeal, the Supreme Court upheld the convictions, but initially reversed the death sentences and remanded the matter for a new penalty phase hearing. Following the remand, Ross elected to represent himself. This led to two pieces of joint litigation aimed at securing a death sentence against Ross. In the first, the Supreme Court declined to answer seven specific questions of law on procedural grounds. In the second, the trial court rejected a stipulation between Ross and the State to waive the new penalty phase hearing and to fix the sentence at death.

In 2000, at the new penalty phase rehearing, a new jury found an aggravating factor and no mitigating factor with respect to each count. The trial court imposed the sentence of death on each count. An appeal to the Supreme Court followed once again, which led to a June 2004 ruling that affirmed the death sentences. Although he had previously elected to represent himself, at the penalty phase rehearing and on appeal, Ross was again represented by court-appointed counsel.

In September 2004, Ross discharged his court-appointed lawyers and retained the attorney who had represented him from 1995 to 1998 when he was pursuing a sentence of death. In October 2004 Ross again waived any further legal challenges to the convictions and death sentences and volunteered to be executed. The court set the execution for January 26, 2005.

In December 2004, Ross’ father, Dan Ross filed a petition for writ of habeas corpus in Rockville Superior Court, as next friend of and on behalf of his son. The petition challenged the convictions and sentences and also sought a stay of execution and appointment of counsel. Ross resisted that action. There was a consolidated habeas petition pending affecting other death row inmates that raised the claim that statistics demonstrate that Connecticut’s death penalty system is marred by arbitrariness and discrimination and thus was unconstitutional. The Public Defender’s Office was concerned that Ross’ election to be executed would have an adverse impact on the pending consolidated habeas cases.

The habeas judge rejected the petition, holding that Dan Ross lacked standing to bring the action. A subsequent appeal failed and on May 13, 2005, 18 years after his initial conviction, Ross became the first person to be executed in Connecticut since 1960.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

Now that the verdict is in in the first Cheshire case following the imposition of sentence on December 2nd, the focus for Steven Hayes turns to the appeal process. Appeals in capital cases are automatic, meaning that a defendant cannot elect not to appeal. The process is lengthy and is part of the reason that Hayes will not see the executioner for many years to come.

In the usual criminal case following the verdict a defendant must preserve the issues to be raised on appeal by filing certain post conviction motions with the trial judge. The purpose is to renew previously raised issues and to give the trial judge the option to cure any such errors by revisiting the ruling and possibly overturning the verdict.

Such motions are rarely granted. When they are, the State then has the right to an appeal to challenge the trial court ruling. In my practice only one such motion was granted following a client’s conviction. In that case the client was convicted of murder conspiracy. Following the conviction the Supreme Court redefined the law of conspiracy and the trial judge was persuaded that his jury instruction did not conform to the new mandates. Absent something of that dramatic nature trial judges will almost always deny the post conviction motions. Those motions are filed and argued in advance of sentencing. Judges will generally rule from the bench but in complex cases a judge may elect to issue a written decision.

An appeal must be filed within 20 days of the imposition of judgment of sentence. A defendant can petition the court to extend the time to file an appeal. Generally, that request is made while a defendant seeks the appointment of the public defender to handle the appeal. Except in capital cases, the failure to file the appeal within the allotted time will result in a waiver of the appeal rights and the judgment becomes final.

The imposition of the criminal sentence is not delayed by the filing of an appeal, except in death penalty cases. Defendants sentenced to a term of imprisonment are required to begin the sentence unless an appeal bond is allowed. An appeal bond is not mandated and is a discretionary decision by the trial judge. In capital cases there are no bonds.

Once the appeal is filed the defendant, now known as the appellant, must order the trial transcript. The appellant’s brief is due 45 days following the delivery of the final portions of the transcript. In lengthy and complex cases the transcripts may be voluminous. Once a request is made by appellate counsel the court reporter begins the transcription process. It is a lengthy one and consumes much of the time that appeals take. Unfortunately, time constraints and funding issues limit court reporters complying with such requests. Most employ a transcriptionist to create the paper transcript.

Once the transcript is delivered it is the very rare case where counsel can file the appellate brief in the initial 45 day period. Often the appellate lawyers were not the trial lawyers and require the complete transcript to identify the errors to be raised. The issues on appeal are limited to those presented on the record to the trial judge during pre-trial hearings or the trial itself. Issues requiring facts that do not appear on the record must be raised in collateral post judgment actions, by either a writ of habeas corpus or a civil Petition for New Trial.

Once the appellant’s brief is filed the state is given 30 days to respond. Again there will be several extension requests from that side as well. Once all briefs are filed the case must await assignment for oral argument, again taking months. Following arguments the Court is under no time constraint regarding the time needed to issue it’s decision. The Justices caucus following oral argument and often reach a consensus based on the preliminary research they and their law clerks have performed. The Chief Justice will assign the case to one of the panel to draft the majority opinion. That draft is usually circulated among the Justices for comment. Those dissenting will author their own analysis. Eventually the opinion is published. It would not be surprising to see this appeal taking two years for resolution.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com

In today’s litigious society no profession is exempt from malpractice claims. Lawyers, like doctors and dentists are held to the standards of care generally accepted by the profession for like services. In the context of post conviction review of a lawyer’s effectiveness in defense of a criminal case, the standard to which that lawyer is held is a minimal one: that is, that lawyer’s actions must be the minimum the profession would find acceptable.

But is that the standard when a lawyer professes to have skills greater than the average attorney? Look at the sometimes outlandish claims by TV ads, or those plastered on the side of every bus in town. The advertisers are making implicit promises of greater expertise than rock bottom minimum competence. Would you be persuaded to hire a lawyer whose ad proclaims: “I’m only as good as the least effective member of the legal profession.” Does all of that puffery create a higher standard of care? Certainly your expectations are elevated when the advertiser tells of his her phenomenal success, recovering millions for former clients.

Most people don’t pay attention to the small print disclaimer that the Bar requires, advising that past success is not an predictor of future success. Is that lawyer held to a higher standard of care? One would think so, but that is not the law. Once again, even in the context of a malpractice claim, a lawyer’s conduct is measured against an objective standard of minimal competence.

What distinguishes many legal malpractice cases from those claims involving other professions is the requirement that the plaintiff not only prove that there was a deviation from accepted standards, but the claimant must also prove the case within the case. That is, the plaintiff has to prove that had the original claim been filed on time, he would have prevailed. Take for example the following: Mr. Jones hires lawyer Smith to sue his doctor for malpractice. Smith accepts the case but fails to fully investigate and allows the two year statute of limitations to expire without starting suit in court. The failure to commence a lawsuit within the applicable statute of limitations is clear cut malpractice. But that is not enough to Jones to prevail in his malpractice claim.

Even with such a clear deviation by Smith, Mr. Jones must be able to prove that had Smith filed a timely lawsuit, Jones would have prevailed. Jones new lawyer has the greater burden of also establishing the negligence of the treating doctor had the original claim been pursued.

Malpractice claims against doctors must be established by expert testimony from a similar health care provider. If the target doctor is board certified in a particular specialty the expert must possess either board certification or such experience and skill that the trial court is convinced of that expertise. To establish the negligence of Smith in many instances requires a legal expert as well as the medical experts. Lawyer Smith has the opportunity to defend the case by disputing the claim of legal negligence; and failing that, Smith can then attack the underlying claim.

While it may appear to be an injustice to expect the damaged client to satisfy two burdens, legal malpractice cases, unlike medical claims, do not require a demonstration that the lawyer filing suit has conducted an adequate investigation before filing. Medical malpractice claims cannot be filed without a certificate of good faith, accompanied by an unsigned opinion from a similar provider. In fact, the requirement is so strict, that courts are dismissing what appear to be meritorious claims because the good faith letter is somehow deficient. No such requirement attaches to the filing of a claim against your lawyer, your accountant or your insurance broker.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at rtm@meehanlaw.com