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October 2019

Equine Law: Nothing to "Horse Around" With

Equine

 “A horse, a horse, my kingdom for a horse”   -  Shakespeare’s Richard III, 1594

    When I was 11 years old I owned a horse that was kept in a stable near my home.  After a few years my father determined that a choice had to be made between feeding and housing the horse or me.  As you can glean I prevailed. 

Equine law covers all aspects of horses and horse related activities and industries.

Equine law covers all aspects of horses and horse related activities and industries. Under the common law, liability for harm to persons by horses were determined based upon traditional tort law concepts such as assumption of risk and comparative negligence. Today 47 states have adopted some form of the Equine Activity Liability Act, except California, Maryland and Nevada. Many states share common characteristics that qualifying defendants should not be liable if an equine related participant sustains injury, damage or death from an inherent risk from equine related activities, subject to exceptions.  The purpose of the EALA is to encourage equine activities by limiting tort liability of individuals who organize or sponsor equine events and activities.  Liability is determined on a state by state basis.  Some states have two sets of equine laws: Activity Statutes and Recreational Use Statutes.  For example, Alaska has two statutes that relate to the limitation of liability for equine activities.1

INHERENT RISK

            Horses present risks because they are powerful and unpredictable.  An inherent risk is an integral part of equine activities such as horseback riding and includes but is not limited to:

  1. The unpredictability of the animals reaction to sounds, persons, sudden movements or other animals;
  2. The propensity of the animal to behave in ways that result in injury or death to persons on or around them;
  3. Collisions with objects or other animals.

 

Inherent risks means the dangers or conditions which are an integral part of equine activities.

Inherent risks means the dangers or conditions which are an integral part of equine activities.  An inherent risk will bar an injured person’s claim of injury. However, the meaning of inherent risk can differ from state to state. In Kentucky, a horse spooking from the sound of an opening gate was deemed an inherent risk under Kentucky’s EALA.  In Texas a horse’s violent reaction to the bite of a fire ant was deemed an inherent risk under Texas EALA.  A dog that jumped at the horses back legs that caused a horse’s reaction was an inherent risk under Ohio’s EALA.

MICHIGAN EQUINE ACTIVITY ACT-MEALA

Signs bearing the statute information must be conspicuously posted around the equine activity area. For example:

WARNING: Under the MICHIGAN equine activity act an equine professional is not liable for an injury to or death of a participant in equine activities resulting from inherent risks of equine activities, pursuant to Section 6 (691.1666) 2 (emphasis added)  

Similarly, Massachusetts law follows Michigan.

WARNING: Under Massachusetts law, an equine professional is not liable for an injury to or death of, a participant in equine activity resulting from the inherent risks of equine activities, pursuant to section 2D of chapter 128 of the Massachusetts General Laws.3

Each state is different and must be consulted for specific language. One excellent source is the American Equestrian Alliance.4

The Michigan Equine Activity Law is known as the Michigan Equine Activity Liability Act. 5  

Section 1

This act shall be known and may be cited as the “equine activity liability act.”

691.1662

Section 2 

As used in this act:

  1. Engage in equine activity means riding, training, driving, breeding, being a passenger upon or providing or assisting in veterinary treatment of an equine, whether mounted or unmounted.  Engage in an equine activity includes the breeding of equines, or assisting a participant or show management. Engage in equine activity does not include spectating at an equine activity, unless the spectator places himself or herself in an unauthorized area and in immediate proximity to the equine activity.

691.1663

Section 3

Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or death of a participant or property damage resulting from an inherent risk of an equine activity. Except as otherwise provided in section 5 a participant or participant’s representative shall not make a claim for or recover civil damages from an equine activity, sponsor, an equine professional or another person for injury to or the death of the participant or property damage resulting from an inherent risk of an equine activity. (Emphasis added)

691.1664

Section 4

  1. This Act does not apply to horse race meeting that is regulated by the racing laws of 1980, Act No. 327 of Public Acts of 1980 being sections 431.61 to 431.88 of the Michigan Compiled Laws.
  2. Two persons may agree in writing to a waiver of liability beyond the provisions of this Act and such waiver shall be valid and binding by its terms.

AMENDMENT OF MICHIGAN EQUINE LIABILITY ACT

Effective Sept. 21, 2015, Governor Rick Synder signed into law an amendment to Michigan’s Equine Activity Act.

Effective Sept. 21, 2015,  Michigan Governor Rick Snyder signed into law an amendment to Michigan’s Equine Activity Act (EALA) to prescribe certain duties for equine professionals changing Michigan’s last exception by modifying its terms into two sections and eliminating the negligence section for certain people, organization and businesses.  The modification to Section 5 (MCL §691.1665) are:

            (d) If the person is an equine activity sponsor or equine professional, commits an act or omission that constitutes a willful or wanton disregard for the safety of the participant and that is a proximate cause of the injury, death or damage.

            (e) If the person is not an equine activity sponsor or equine professional, commits a negligent act or omission that constitutes a proximate cause of injury, death or damage.6

An equine activity sponsor means an individual, group, club, partnership or corporation whether or not operating for profit, that sponsors, organizes or provides the facilities for an equine activity; including but not limited to a pony club, riding club, school or college sponsored class, program, or activity, therapeutic riding program; stable or farm owner, and operator, instructor or promoter of an equine facility including but not limited to a stable, clubhouse, pony ride string, fair or arena at which the equine activity is held.

Equine professional means a person engaged in any of the following for compensation: (i) Instructing a participant in an equine activity. (ii) Renting an equine, equipment or tack to a participant. (iii) Providing daily care of horses boarded at an equine facility. (iv) Training an equine. (v) Breeding of equines for resale or stock replenishment.

CASE LAW

            Relevant case law under Michigan’s Equine Liability Act is Amburgey v. Sauder where the plaintiff was bitten by a horse as she walked through an aisle in a stable.  The Michigan Court of Appeals affirmed dismissal because the plaintiff was an equine activity participant and her injuries resulted from an inherent risk of equine activity.7

In Cole v. Ladbroke Racing Michigan, Inc., plaintiff, a licensed horse exercise rider sued the operator of a horse racing facility. He had been injured when he was thrown off a horse that he had been exercising.  The horse became spooked by a kite on the defendant’s premises.  The court held that EALA did not offer protection of immunity to the defendant because the exercising was found to be an activity in preparation for a horse race. And the EALA does not apply to horse race meetings.  However, the plaintiff previously signed a release which covered “all risk of injury that the undersigned may sustain while on the premises.”  Thus, the defendant was released from liability of negligence.8

NEW YORK EQUINE ACTIVITY LAW

On October 23, 2017 New York Governor Andrew Cuomo signed into law and effective immediately the states version of an equine activity law.  This law makes immunities conditional upon compliance with responsibilities as the law describes for “operators” and “visitors”. 9

CONTRACTS

In equine law contracts may include breeding, boarding, buying, training, selling, leasing and of plethora of other activities.

            A contract is a voluntary and binding agreement between two or more persons or parties supported by adequate consideration that is enforceable by law.  In equine law contracts may include breeding, boarding, buying, training, selling, leasing and a plethora of other activities. The handshake agreement is often used in equine related activities because the relationship between barn owner, rider or horse owner is often a friendly relationship.  However, this is an unreliable method of forming legal rights, responsibilities and potential liabilities.  A bevy of forms to cover your situation can be found and purchased at Equine Legal Solutions.10 

A signed written contract with a binding arbitration clause should be consummated setting out the rights and responsibilities of the parties.

A signed written contract with a binding arbitration clause should be consummated setting out the rights and responsibilities of the parties. Arbitration allows a neutral third party to make the decision for the parties without involving the court system.  If a party breaches the arbitration award the nonbreaching party can bring a lawsuit against the other party. The primary goal of agreeing to alternate dispute resolution procedure is to avoid the costs and time spent in a judicial proceeding.  An additional purpose of agreeing to an alternative dispute resolution procedure is to preserve a business relationship in a continuing amicable manner.

Another alternative dispute resolution procedure is mediation.  Mediation provides an informal environment in which the participants are guided by a neutral third party. Thus, arbitration and mediation clauses provide a procedure of resolving the dispute while maintaining an amicable relationship.

Equine Related Insurance

            If you own a horse, horse farm or stable you should consider it as an investment together with protecting yourself from personal liability.  The key is to purchase insurance that provides coverage for theft, mortality, major medical, surgical only, loss of use, trip transit, general liability, equine event liability, equine commercial liability, independent trainer- instructor and other coverages relevant to your situation.  Purchasing equine insurance also ensures that your horse is covered during its lifetime. An excellent source is the Equine Insurance Center.11

Commercial General Equine Liability covers general liability equine matters such as boarding and training facilities.

Professional Liability protects against negligence in training horses or giving horse lessons.

Individual Horse Owner Liability covers injury or damage that arises from your horse activities.

Horse Club Events covers clubs or associations that organize shows or events.

Equine Mortality Insurance-covers the death of your horse from injury, disease, illness or accident. This type of insurance requires a veterinary certificate of good health. The amount payable at death depends on the policy language of agreed value or actual cash value of the horse at the time of death.

TRIAL PRACTICE

            One of the first tasks an attorney should do in starting a case for trial is to prepare the jury instructions.  This step alone should prevent a directed verdict at trial.  In preparing the jury instructions you will set out the elements of your cause of action or defense.  The jury instructions will have all the substantive law essential to prove or defend your case.  The jury instructions or court’s charge should be your bible and road map.  Now you will have the information for preparing the opening statement, direct examination, cross examination and final argument.

TRIAL THEMES

            When you develop a powerful case theme you give the jurors a lens through which they will favorably view the evidence in your case.  The theme of the case is a one sentence explanation of your theory.  A theory is a succinct statement as to why the plaintiff should win or criminal defendant is not guilty of the charged crime.  The theme should flow logically from the facts and relate to the juror’s life experiences.  The theme of the case is the basic underlying idea which explains both the legal theory and factual background of the case. And, it ties them into a coherent and believable whole.  Make your trial theme memorable.  For example:

This is a case about a broken promise.”

“A horse is a thing of beauty but it is also unpredictable.”

“Proper handling of a horse is no simple matter.”

“The only constant thing in life is change. Things can change rapidly when you are dealing with horses.”

The above are only examples as a guide.  The best theme will be your own development that you should change or modify until you have found the best one.

CONCLUSION

Today, 47 states have adopted some form of the Equine Activity Liability Act, except California, Maryland and Nevada.  Although the laws differ most of them share common characteristics that qualifying defendants should not be liable if an equine related participant sustains injury, death or damage from an inherent risk. The purpose of the EALA is to encourage equine activities by limiting tort liability of individuals who organize or sponsor equine activities. The Michigan Equine Liability Act was amended in 2015 that prescribes certain duties for equine professionals eliminating the negligence section for certain people, organizations and businesses.  If you own a horse, horse farm or stable you should purchase insurance to protect against theft, horse mortality, events, major medical and personal liability.

In equine transactions a signed written contract with a binding arbitration clause should be consummated setting out the rights and responsibilities of the parties.

If you are involved in litigation first prepare the jury instructions and then your opening statement with a memorable theme.  If you have any questions do not call me because I will be in court – call Julie Fershtman. She is probably the best source in Michigan for substantive equine law issues.

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James A. Johnson, of James A. Johnson Esq. in Southfield is a trial lawyer.  His primary area of concentration is serious Personal Injury, Insurance Coverage under the Commercial General Liability policy, Sports & Entertainment Law and Federal Criminal Defense. Mr. Johnson is an active member of the Michigan, Massachusetts, Texas and Federal Court Bars. He can be reached at www.JamesAJohnsonEsq.com 

ENDNOTES

  1. AS §09.65.145; AS §09.65.290
  2. MCL § 6 (691.1666)
  3. Section 2D of chapter 128 of the Massachusetts General Laws.
  4. http://www.americanequestrian.com/equinelaws
  5. MCL 691.1661-1667
  6. 5 of 1991 PA 351 (MCL 691.1665).   
  7. 238 Mich. App 228, 233, 237, 246, 605 N. W. 2d 84 (Mich. 2000).
  8. 614 N.W. 2d 169 (Mich. 2000).
  9. http://legislation.nysenate.gov/pdf/bills/2017/S1152A
  10. http://www.equinelegalsolutions.com
  11. http://equineinsurancecenter.com/coverages

Helpful Equine Sources

  1. Milton C. Tobey & Karen L. Perch, Ph. D., Understanding Equine Law: Your Guide to Horse Health Care & Management (The Blood-Horse Inc., 1999).
  2. Julie I. Fershtman. Attorney at Law, More Equine Law and Horse Sense (Horse & The Law Publishing 2000).
  3. James Clark-Dawe, Equine Liability: What Every Horse Owner Needs to Know.
  4. Julie Fershtman Equine Law Blog equinelawblog.com
  5. Robert L. Heleringer, Equine Regulatory Law http://equineregulatorylaw.com
  6. HG.org/equine.html
  7. cataneselaw.com
  8. http://animallawsource.org
  9. http://www.animallaw.com

The Long and Winding Road of Public Service Loan Forgiveness

Studentloan

    Earlier this year, young and new lawyers of the American Bar Association (ABA) convened in Washington, D.C. for an excellent conference for legal nerds, with visits to the Capitol and the Supreme Court. Beyond the inspirational talks given by politicians and public servants, I learned about the Public Service Loan Forgiveness Program. I work for a nonprofit and have law school debt, and am hoping to be able to take advantage of PSLF. Over the last 3 years of working in public service, I have had a rocky relationship with my loan servicer, MyFedLoan. 

    Here is the advice given by the Governmental Affairs Office and Legislative Counsel of the ABA on making sure you can qualify for PSLF. Make sure you have a direct loan, if you attended law school prior to 2009 (or around that time), your federal loans may not be a direct loan. Make sure you are in an income-based repayment plan. Before you accept a job at a nonprofit, make sure the nonprofit would qualify for PSLF. Submit at least 1 Employment Certification Form per year. I try to submit a form every six months, or sooner if I have switch jobs. Make exact you pay only what the loan servicer asks you to pay each month and make the payment on time. You may be tempted to pay more than you owe, but this will backfire on you because it will put you in what is known as ‘paid ahead status.’ For example, if your payment monthly payment is $100 and you receive a cash gift and one month you pay $200 to your Federal Loans, you will be paid ahead for one month. If you keep paying $100 per month with an ACH payment, you will always be ahead. And each month that you are paid ahead, that month will not count towards your 120 payments towards loan forgiveness. 

    There is some hope for those who are at the end of their 120 payments and worked for a qualifying nonprofit, apply for loan forgives and were denied. Those individuals could take advantage of the Temporary Expanded Public Service Loan Forgiveness. This program may apply to you if you applied for loan forgiveness and were denied because you were not paying under a qualifying repayment plan. Additionally, the ABA won an important judgment in favor of 3 public service borrowers who received many years of approval as a qualifying nonprofit working for the ABA in a capacity similar to a civil legal aid attorney, but were later denied. In ABA et al. v U.S. Department of Education et al., the judge ruled that the department changed its definition of public service in an arbitrary and capricious manner when it denied the applications. I hope that public service loan forgiveness continues and expands or makes it easier for borrowers, but there is reason to be concerned about this program. So contact your local official and tell them your horror story with the program and encourage them to simplify and expand the program.

- Amy Krieg, Attorney and Compliance Officer, Habitat for Humanity of Huron Valley


The (Lawyer) Dating Conundrum

Lawyer

At 32, I found myself going through a divorce. After finally entering into an agreement for canine custody, the divorce was final and I suddenly found myself reentering the dating world. Dating your 30s is an entirely different animal than in your 20s. You are set in your ways, have a good amount of life experience, and have collected some “baggage” along the way. I’ve had some pretty hilarious dating experiences. Nonetheless, I navigated fairly well with the support of my friends, family, and of course, my dog.  But then I had a dating problem that landed right in my office.

Immediately, I went to my partner, Brandon, and closing his office door announcing that I needed to chat. Brandon and I joined the firm at about the same time and became partners of the firm a couple years apart. Quickly, he became one of my closest confidants and source of advice in the firm. Usually, he just calms me down when I am too heated over some legal issue. This was a new one for him.

I explained that another lawyer asked me to go on a date. I was not quite sure how to handle it. Brandon got this smirk on his face and eagerly asked, “Who is it?” Our Bar has approximately 130 attorneys. I could hardly blame him for the curiosity.

We pulled the Rules of Professional Conduct. The only relationships the rules address are “Family Relationships Between Lawyers” under MRPC 1.8(i), which states as follows:

“A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.”

When the lawyers are in different firms, the conflict concerning familial relationships is personal and not imputed.

Formal Opinion R-3, July 21, 1989 addresses lawyers cohabitating. When lawyers cohabitate, they likely have a degree of intimacy, confidentiality, and shared interest which creates the potential for conflict of interest…”. Thus, when in a cohabitating relationship lawyers must follow MCRPC 1.8(i) and disclose the relationship to the clients before beginning or continuing representation.

There are clear rules for marriage and cohabitating, but how about dating? What is datinganyway? A first date, the ninth date, leaving a toothbrush, moving in? Formal Opinion R-3, July 21, 1989 points out the complexity, the “degree of confidentiality and shared interest in a dating relationship can vary greatly.” It advises erring on the side of caution and disclosing the relationship or declining representation if the dating relationship is likely to cause clients to question whether their interests would be zealously represented or the dating relationship might otherwise damage the lawyer-client relationship.

I did not have any ongoing litigation against the lawyer who asked me out. However, about a year before, we started helping helped facilitate discussions in a family dispute. While both our files were open, the clients were working it out between themselves and had not engaged either of us in their discussions for many months.

Brandon and I thought that I should go on the date first and see where it goes before disclosing anything to my client or withdrawing from that matter. We made it to the second date and, well, I am writing this article. One of us talked to our client and withdrew from the case we had together.

Our firms also needed to know about the potential conflict so we could be screened off from matters involving the other’s firm.During a very awkward moment during an attorney breakfast meeting, I let the cat out of the bag. Letting my partners into a very personal aspect of my life was uncomfortable, but it was worth it.

The dynamics of a dating another lawyer are complicated in many ways. Many of us have very strong personalities and figuring out how to leave the lawyering at the office is a challenge.We live in a relatively small town, so a conservative approach to avoid any appearance of impropriety was undoubtedly the best choice.   

Erica Payne is a shareholder at Kendricks, Bordeau, Keefe, Seavoy & Larsen, P.C. in Marquette, Michigan. Her practice focuses on real estate, probate and trust administration, and civil litigation in these areas. Since 2016, Erica has been member of the State Bar of Michigan Young Lawyers Section Executive Council, where she chairs the Upper Peninsula Engagement Committee, and Representative Assembly since 2016. Erica is serving her second term as President of the Marquette County Bar Association. She volunteers on several committees with the Real Property Law Section and organizations in Marquette.


Are you ready for some football (litigation)??

            Concussion

            Concussions, also known as traumatic brain injuries, occur when your brain violently impacts the inside of your skull.  Concussions can permanently damage your brain function ability to think or work.  These injuries lead to tort claims and product liability lawsuits against the National Football League, high schools, colleges, helmet manufacturers and others involved in the game of football.

FOOTBALL

             Football is a game of violence engendering results like retired players who can’t get out of bed without help, migraine headaches, quarterbacks and linemen who can’t raise their arms or tie their shoes. This game has caused suicides, namely Aaron Hernandez, Jovan Belcher, Junior Seau, O.J. Murdock, Kurt Crain, Mike Current, Dave Duerson and Ray Easterling. There was an avalanche of litigation against the NFL, NFL Properties, Riddell Sports Group and others. Approximately 2,500 former players and surviving family members sued the NFL for allegedly distorting and hiding data about concussions. 

On April 15, 2013, a Denver, Colorado jury found Riddell Inc., liable for failing to warn about concussion dangers. The jury awarded $11.5 million to a Rhett Ridolfi, a high school student and found Riddell 27 per cent at fault. Ridolfi, a former Colorado high school football player suffered serious brain injuries and partial paralysis. The jury assessed $3.1 million in damages against Riddell.

In 2010 the NFL gave Boston University’s Center for the Study of Traumatic Encephalopathy one million dollars to study the brains of 60 deceased football players. Many showed signs of (CTE) chronic traumatic encephalopathy. CTE is a neurodegenerative disease caused by repeated blows to the head. The symptoms of CTE are slurred speech, headaches, psychosis and depression.

NATIONAL CENTER FOR INJURY PREVENTION

            According to the National Center for Injury Prevention, it is estimated that as many as 47 percent of all high school football players suffer a concussion each year.  Football players who suffer multiple concussions are at risk of suffering permanent brain damage.  A few years ago, not one state required that high school and middle school athletes who suffered concussion symptoms receive medical clearance to return to play.  According to USA Football all 50 states, now have some form of student –athlete concussion law in place.

            The purpose of this article is to inform coaches, players, parents, athletic directors and general counsel the seriousness of the risks of concussions to young people whose brains have not yet fully developed.  Every concussion is a brain injury.  The effect of this damage range from behavioral and emotional disorders to full body paralysis.

            An excellent resource for comprehensive facts and laws covering youth sports is Law Atlas-The Policy Surveillance Portal- Choose a topic -Youth Sports Traumatic Brain Injury Map Laws - Injury and Violence Prevention.  For example it states:

            “Every year as many as 300,000 young people suffer concussions or traumatic brain   injuries (TBIs), from playing Sports.  These injuries can have serious-and long term effects, and all states have adopted laws aimed at reducing harm for youth sports TBIs occurring at scholastic activities.  This map identifies and displays key features of such laws across all 50 states and the District of Columbia and over time, from 2009 to 2017.”3  

MICHIGAN HIGH SCHOOLS

The Michigan High School Athletic Association provides a bevy of information on health and safety including insurance benefits. As of August 2017 the association provides its members a Catastrophic Accident Medical Insurance Policy.  It pays up to $500,000 for medical expenses left unpaid by other insurance subject to a $25,000 deductible per claim. Visit the MHSAA website4 that provides:

Concussion Insurance Benefits Information and Forms

2017-18 Return to Activity & Post Concussion Consent Form

Concussion Education Materials Acknowledge Form

Concussion Resources

Student-Athlete Screening Guidance

            The return to activity form is to be used after an athlete is removed from and not returned to activity after exhibiting concussion symptoms.  MHSAA rules require (1) Unconditional written authorization from a physician or nurse practitioner and (2) Consent from the student and parent/guardian. The clearance must be in writing.  The medical examiner is the only person to approve the student’s return to unrestricted activity.

            In 2019 the MHSAA developed a new set of rules for football practices to limit “collision practices.” They define collision practice as executing full tackles at a competitive pace and taking players to the ground. Collision contact is limited to 30 minutes per week during the regular season.  Helmet manufacturers Riddell and Detroit based Zenith are creating better products to make football safer. Repeated blows to the head or repeated concussions over time can cause Alzheimer’s disease and Parkinson’s disease.

BRAINSCOPE

            Brainscope is a medical neuro-technology company located in Bethesda, Maryland. It is pioneering the assessment of brain injury including concussion.  BrainScope One is a mobile brain injury assessment device that can diagnosis traumatic brain injury (TBI).  A medical technician or nurse places electrodes on a patient’s forehead, temples and around the ears. The device records an electroencephalogram in about five minutes.  Software then calculates the likelihood of structural brain damage or functional impairment.  This is based on patterns of deviation from a database of healthy brain signals.  It combines smartphone software with a disposable electrode headpiece.

            Clinical trials have demonstrated that BrainScope One can indicate the presence or absence of brain injury with 98 percent accuracy.  It is not intended as a stand-alone diagnostic or as a replacement for a CT scan.5   Michael Singer, Chief Executive Officer says that BrainScope will be cheaper and more widely available next year and in the future may be able to diagnose conditions such as stroke.

          In addition, in 2018 the U.S. Food and Drug Administration approved a blood test to help diagnose a concussion.  Known as the Banyan Brain Trauma Indicator it could help reduce the need for CT scans.  The blood test checks the levels of specific proteins that have been released from the brain into the blood within 12 hours of a head injury.6

SHOW ME THE MONEY

            U.S. District Judge Anita Brody in Philadelphia approved a one billion settlement for NFL players and family members that became effective on July 7, 2017. The settlement award covers amyotrophic lateral sclerosis, Parkinson’s disease, death with chronic traumatic encephalopathy, Alzheimer’s and dementia.  Currently CTE can only be diagnosed with an autopsy. The settlement does not currently cover future cases of CTE.  Judge Brody has urged the parties to revisit the issue with scientific advancements. The revised settlement approved by Judge Brody covers more than 22,000 NFL retirees and is designed to last at least 65 years.  It also provides up to 5 million to individual retirees who develop Lou Gehrig’s disease and other profound problems.7       

          In addition, in 2018 the U.S. Food and Drug Administration approved a blood test to help diagnose a concussion.  Known as the Banyan Brain Trauma Indicator it could help reduce the need for CT scans.  The blood test checks the levels of specific proteins that have been released from the brain into the blood within 12 hours of a head injury.8

MOUTHGUARD

            PowerPlus Mouthguard, developed by a Traverse City dentist and manufactured in Gaylord is the newest protective gear. The lower-jaw mouthguard is custom fitted and protects the brain from impact injury.  It is designed to maximize the safety and performance of athletes participating in all sporting activities.  In an ongoing concussion field study results have shown the incident of concussions reduced to 0.20 percent.  The study includes athletes at all levels, from high school to professional and represents multiple sports.  Male and females are included in football, basketball, soccer and hockey. It appears this is a breakthrough in concussion lowering technology.9

CONCLUSION

        It is the responsibility of coaches, referees, parents and athletic directors to know the warning signs and symptoms of concussions. A concussion is a traumatic brain injury caused by a blow to the head that causes the brain to violently twist or move inside of the skull. Some symptoms are obvious and some are not. Symptoms can last weeks or for many months. The purpose of this article is not to deter participation in football but rather to educate and inform attorneys, athletic directors, coaches, parents and players of the risks and symptoms of concussion.

         Participation in sports by young people can engender mental and physical toughness, discipline, sportsmanship and leadership qualities. These individual attributes collectively can also provide an advantage in the game of life.

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James A. Johnson of James A. Johnson, Esq. in Southfield is an accomplished Trial Lawyer. He concentrates on Sports & Entertainment Law, serious Personal Injury, Insurance Coverage under the Commercial General Liability Policy and Federal Criminal Defense.  Jim is an active member of the Michigan, Massachusetts, Texas and Federal Court Bars. He can be reached at www.JamesAJohnsonEsq.com

ENDNOTES

  1. Rich Barlow at www.bu.edu/today/2010/nfl-gives-1m-to-bu-center-for-athlete-brain-study/  (last visited 8-19-19).
  2. http://usafootball.com  -National Center For Injury Protection-Brain Injury Basics (last visited 8-19-19).
  1. www.lawatlas.org – Choose a Topic-Injury & Violence – Youth Sports Traumatic Brain    Injury Laws.
  1. https://www.mhsaa.com/schools/health-saftey-resources/ (last visited 8-19-19).
  2. https://www.brainscope.com;  Bloomberg Businessweek, July 23, 2018 at P. 25  
  3. https://www.webmd.com/brain/news/20180214/fda-approves-first-blood-test-to-detect- concussion (last visited 8-19-19)
  4. https://nflconcussionsettlement.com (last visited 8-19-19). 
  5. https://www.webmd.com/brain/news/20180214/fda-approves-first-blood-test-to-detect-concussion  (last visited 8-19-19)
  6. http://www.dbusiness.com/daily-news/Annual-2019/PowerPlus-Mouthguard-from-Traverse-City-Dentist-Helps-Boost-Athletic-Performance-While-Reducing-Concussions/?utm_campaign=Newsletter%20-%20DBusiness%20Daily%20News&utm_source=hs_email&utm_medium=email&utm_content=68899933&_hsenc=p2ANqtz-_xl6zPpkuPe6X9B0SgGpD5uTBl7wsqdDvoQLKb8I2VwdxCwVyUHAqs__ieXQ5EkGoyWR_Q82x7c8HHeOvK7QVN9Cqh8g&_hsmi=68899933

The Importance of Pro Bono Work

Giveback
 

“We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, 
to ensure that justice exists for all, both legal and economic justice.” 

Associate U.S. Supreme Court Justice Sonia Sotomayor (November 2002)

    Despite the best efforts of civil legal aid programs, the vast majority of civil legal needs go unmet. The shortfall between the volume of civil legal needs of low-income individuals and the resources available to them to meet those needs is called the Justice Gap. Last year, the Legal Service Corporation (LSC) conducted an extensive, nation-wide survey of the Justice Gap (the first study of its kind in twenty-three years). LSC’s extensive report boiled down to three main conclusions:

  1. The volume of civil legal needs amongst low-income Americans is enormous; 
  2. Most of those needs receive no or inadequate assistance; and 
  3. The consequences of not receiving legal assistance in addressing civil legal needs can have a severe impact of people’s safety, their family stability, their housing, and their health. 

    For every 10,282 people in Michigan who qualify for legal aid, there is only one civil legal aid attorney available to provide direct representation. To put that in perspective, that is like having the entire crowd at Michigan Stadium having access to the number of Michigan football players on the field during a single play.  In contrast, there is one Michigan lawyer for every 276 Michigan residents in the general population. 

            Pro bono is short for Pro bono publico, which literally translates to “for the public good.” Members of the the State Bar of Michigan Young Lawyers Section already do a great deal of contributing to the public good. But we can do more, and we have a responsibility to do so.  Our responsibility as lawyers to contribute to advancing access to justice is laid out in the Lawyer’s Oath we all swore to become members of the bar. It says, in part, “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any cause for lucre or malice.” 

Michigan Rule of Professional Conduct 6.1 reinforces that responsibility:

    A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services             at no fee or a reduced fee to persons of limited means, or to public service or charitable groups or organizations. A lawyer may also discharge this responsibility by service in activities for improving the law, the legal system, or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

    Ensuring access to justice is an important part of eliminating poverty. Lawyers are in a unique position to advocate for those struggling for such access. We are problem-solvers. We are efficiency experts. We can distill complex regulations, statutes, case law, and facts to simple and persuasive arguments. We know the system. We have connections. And people listen to us (sometimes). 

There are many ways that you, too, can contribute. From serving on the OCBA Pro Bono Committee, to handling an expungement hearing, or providing full representation in divorce case to a victim of domestic violence—the time commitment for pro bono work can be as little or as much as you want. 

Don’t worry about any perceived gap in your substantive knowledge or technical skill set. Whether you are a new attorney just starting out or a narrowly focused complex commercial litigator, there are opportunities to contribute. Thank you for all that you do in upholding the ideals of our justice system. Together we can narrow the Justice Gap even further, and perhaps one day, eliminate it.

Laura Kubit

Legal Services of Eastern Michigan