| BEWARE OF INTERFERENCE WITH A MARRIAGE
UNDER NORTH CAROLINA LAW |
|
When a marriage ends, the emotional and economic impact on both spouses is immeasurable. According to a study conducted twenty years ago that compared stressful life events, the greatest personal stressor is the death of a child or a spouse. The next greatest stressor is the breakup of a marriage, determined to be more stressful than the loss of a job, the death of a parent, or the process of building a home. The stress of dealing with a broken marriage is often quite severe and can be aggravated when a third party is involved in the breakup.
North Carolina is one of only five states that still allow, without limitation, the claims of alienation of affection and criminal conversation. These legal claims arise when a third party interferes with a marital relationship, typically by tempting a spouse into an extramarital affair. For example, when a wife develops a romantic relationship with someone at work and that relationship results in the breakup of her marriage, her husband may be able to sue for damages against the man with whom she had the affair.
Over the past ten years or so, these claims have generated a lot of publicity. Verdicts have been entered in excess of a million dollars in a few cases in which aggravated conduct by the offending party was involved. But there have also been verdicts rendered on similar claims in amounts of about five thousand dollars here in Wake County. It is nearly impossible to predict what a jury will decide in this type of case.
The concepts of alienation of affection and criminal conversation arise out of our English common law. At one time in history a man’s wife was considered his property. When another individual took his property, the husband was allowed to file suit and seek damages against that person. During the nineteenth century, people became more enlightened and the law was expanded to permit a wife to bring a similar action against someone who took her husband. By the late twentieth century, many states had eliminated these claims by either legislative or judicial action. As of 2004, 46 states and the District of Columbia had abolished or severely limited the alienation tort and 43 states and the District of Columbia had abolished the tort of criminal conversation.
There are many unsuspecting people who have moved to North Carolina in the last twenty years who have found themselves in the middle of litigation simply because they began a relationship with someone who was separated from their spouse, but not yet divorced. This is the most commonly violated element of the tort of criminal conversation. A person who begins a sexual relationship with a separated but not divorced person can be accused of criminal conversation, even when the new relationship did not begin until after the spouses had separated. Some states have eliminated this claim but have retained the claim of alienation of affection, which focuses on conduct prior to the marital breakup.
Many in North Carolina favor keeping these claims, despite our state’s minority position. It has been argued forcefully that a marriage is the most solemn and personal covenant a person can enter into, and when someone interferes with that covenant it is only right to allow the person who is harmed to seek a judicial remedy. It has been argued that intruding third parties can in fact break up good marriages. It has further been argued that abolishing these torts will have the effect of legalizing adultery in North Carolina, and that no other legal remedy exists by which an aggrieved spouse may seek justice against someone who has intruded into and broken up their marriage.
On the other hand, many family lawyers feel that lawsuits for alienation of affection and criminal conversation are frequently brought simply to gain leverage in a domestic property and alimony negotiation between the husband and wife in their divorce proceeding. It has been argued strenuously that these claims do not protect marriages. Opponents of these laws point to statistics that show that only one of the 25 states with the lowest divorce rates in the United States have retained unlimited alienation of affections and criminal conversation claims. Conversely, the other four states that have retained the claims are in the top half of the states with the highest divorce rates.
In recent years, more and more of these claims have been brought not only against the individual who allegedly broke up the marriage, but also against businesses where the offending relationship arose. In at least a handful of North Carolina cases, employers such as banks, medical practices, and law firms have been sued as defendants in alienation of affection and criminal conversation actions when an employee was accused of breaking up a marriage. To date, all of these employer defendants have been dismissed from the pending cases prior to trial. It is worth noting, however, that the Mississippi Supreme Court recently reversed the dismissal of an employer medical practice from a lawsuit in which alienation of affection and criminal conversation were alleged, ruling that the case should go to trial with regard to the claims against both the employer and the individual physician defendant.
Recently, the North Carolina Bar Association, through the work of the Family Law Section, has submitted a proposed bill to the North Carolina General Assembly that would serve to abolish claims for alienation of affection and criminal conversation. Similar legislation has been proposed several times in the past. In 2004, the House of Representatives approved a similar bill, but it did not pass the Senate. It is the hope of the North Carolina Bar Association’s Family Law Section that the abolishment of these claims will become law and that North Carolina will join the overwhelming majority of other states that have determined that such claims are outdated and no longer serve a useful purpose.
For more information about these claims or for other advice on a wide range of family law matters please contact John W. Narron at
jnarron@smithdebnamlaw.com. John is a partner with Smith Debnam, currently serving as chairman of the Family Law Section of the North Carolina Bar Association.
Back
to Index
The New European Union:
A Land of Opportunity
During my recent travels in Europe, I discovered the incredible opportunities that international trade offers to North Carolina companies. Nowhere else is foreign trade more accessible than in Europe. While Europe has historically proven to be a strong market for trade with the United States, it is just beginning to realize the advantages of the recent creation of the European Union (EU). Overcoming the previously fragmented and compartmentalized economies of these countries, the EU provides a unified market and standardized currency that has generated a robust, interdependent European economy. While language and cultural differences naturally remain between European nations, and political ideologies are not likely to converge, EU members are working together successfully in unprecedented ways.
For American business, the developments in Europe have served to open wider the doors of opportunity. The establishment of the Euro provides a transactional currency that is more easily traded and valued. English appears to be emerging as the front-runner to become a standard language for EU relations and
communications. EU member countries are also eager to trade with the world. The EU represents a significant player in a global economy, and its member nations therefore provide a growing and exciting market to any business with a global strategy.
Trading internationally does brings issues into play on both sides of the Atlantic. As always, customs, tariffs and trade laws can be challenging and expensive to navigate. However, EU member countries may also have unique issues that greatly affect their ability to trade. One experience of mine in Slovakia, a fairly new member of the EU, illustrates this point well.
While in Slovakia, I had the opportunity to visit Mrva and Stanko, a prominent Slovakian winery, and spoke with its owner, who had arranged a tour of the winery and a tasting. It seemed obvious to me that the winery would be very successful if it traded internationally. Unfortunately, under Slovakian law it was not yet possible to export their wine from the country – I couldn’t even take a bottle with me to Germany. At first I was baffled. Why would Slovakia not allow such a fine product to bring in foreign revenue and investment? The answer, I learned, is that enormous subsidies are available to the winery, but only if it does not export its product. Slovakia’s restrictions are intended to allow its wine industry to mature without foreign involvement. Slovakia wishes to carefully regulate its wine production and protect its quality. The owner of the winery explained that years of communism caused a mechanical production of poor quality of simple red and white wine. During this period the Slovakian wine masters, including the Mrva and Stanko families, guarded their secrets from the Soviet regime, only secretly and sparingly making or trading the best wine. The wine masters and their secrets weathered the storm of communism until the collapse of the Soviet system in 1991. Now, the great secret of Slovakian wine is being enjoyed and refined in a protected and highly regulated market. Slovakia is determined that when and if it does begin to export its wine, it will be second to none.
In addition to national laws, EU member countries may be subject to rules and laws that have been promulgated by the EU to centrally regulate certain aspects of trade. For instance, the EU is currently reviewing legislation regarding tobacco labeling that would be applicable to cigarettes sold in its member nations. The proposed labeling contains requirements for warnings which are much more graphic and aggressive than the labels required in the United States. It would be no surprise to see the EU also become heavily involved in wine labeling and warnings.
After navigating the challenges of national laws, tariffs, and EU requirements, it then becomes necessary to consider establishing the business terms that would be applicable to any contract. If trading in goods, such as wine, The International Convention on the Sale of Goods (ICSG) has set basic standards of contract that apply between two foreign entities. The United States and most of the countries with which it trades are parties to the treaty. The ICSG is essentially a relaxed version of our Uniform Commercial Code, but there are important differences. For instance, the requirements for formulating a valid contract under the ICSG are minimal, and the ICSG requires that disputes be settled via international arbitration. Virtually any dealing might be argued to form a valid contract under the ICSG, including oral communications. Unless it is expressly excluded by written contract, the ICSG is deemed to apply to any contract for the sale of goods between a buyer and seller whose countries are signatories to the treaty. Therefore, it is essential that American businesses that are trading goods internationally be aware of and address the application of ICSG to their transactions.
Initially, international trade can seem daunting. A business seeking to conduct business with Mrva and Stanko, for example, might easily become discouraged by the red tape. However, the European market is hungry for American trade, investment, and employment. Technology is eliminating the barriers at a rapid pace, and those American businesses that engage in international trade should experience their reward soon. To develop an effective strategy to overcome the remaining obstacles, enlist the services of a lawyer who is prepared to navigate the waters of international trade.
Aaron Bailey, a partner at Smith Debnam, concentrates his practice in state and federal commercial litigation. In 2006, Mr. Bailey traveled to Belgium, Germany, Greece, and Slovakia as a Marshall Memorial Fellow of the German Marshall Fund of the United States, a nonpartisan American public policy and grant-making institution dedicated to promoting greater cooperation and understanding between the United States and Europe. If you have questions about the development of business in an international market, please contact Aaron at 919 250-2134.
Back
to Index
Smith Debnam Proudly Salutes Its Certified Paralegals
You may not see them giving dramatic courtroom arguments, but the work of paralegals is no less important than that of a seasoned attorney to the outcome of a successful legal case. While lawyers bear the ultimate responsibility for representing clients’ legal interests, many of the behind-the-scenes tasks are accomplished by paralegals. Recognizing the critical role that paralegals play in our legal system, in 2005 the North Carolina State Bar, responsible for regulating the practice of law, established a program for the certification of paralegals.
The North Carolina paralegal certification model was developed by attorneys and paralegals as a voluntary program designed to ensure paralegal competency, and thereby elevate and provide consistency in the quality of the legal services they provide. The program assists in the development of paralegal professional standards, raises the overall profile of the paralegal profession, and sets a performance expectation that both the general public and legal professionals can refer to and rely upon. If a paralegal is a North Carolina Certified Paralegal, all involved in a case can be assured that he/she has met or exceeded the skill and knowledge requirements established by the NC State Bar.
Under the provisions of this program, currently practicing paralegals may qualify for certification based on a combination of education and prior work experience – however, this qualification opportunity is only available to applicants until June 30, 2007. Effective July 3, 2007, all applicants will be required to have a paralegal degree from a qualified paralegal studies program, and will also be required to successfully pass the North Carolina Bar’s paralegal certification exam. Qualified paralegals must meet certain minimum education levels in order to become certified, and are required to undergo a minimum level of annual continuing education in order to maintain their certification.
Once a paralegal has become certified, he or she may use the following titles: North Carolina Certified Paralegal, North Carolina State Bar Certified Paralegal, Paralegal Certified by the North Carolina State Board of Paralegal Certification and/or NCCP.
Smith Debnam currently has twelve North Carolina Certified Paralegals, and expects this number to increase in the coming months as others complete the certification process. Smith Debnam is proud of the quality and professionalism exhibited by our paralegals, and salutes those paralegals that have exerted the effort to validate their expertise by obtaining their certification.
Article prepared by Joann Cotton, a North Carolina Certified Paralegal with the firm’s Construction and Equipment Leasing & Finance practice group.
Back
to Index
Employment
Law
DID YOU KNOW that an employment policy that requires the prompt reporting of sexual harassment can bar an employee’s claim that is made several months after the allegedly improper conduct?
In the case of Baldwin v. Blue Cross/Blue Shield of
Alabama, decided by the United States Court of Appeals for the Eleventh Circuit, the Court held that a marketing representative who waited more than three months before coming forward with allegations that her supervisor used profanity on an almost daily basis and referred to female marketing representatives in vulgar and sexist terms, would not have an opportunity to prove her allegations at trial. This was because the employer’s anti-discrimination policy required employees to report such allegations promptly. The Court held that under prior rulings by the United States Supreme Court, an employer avoids liability if (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided. Under the facts described in this case, the Court determined that the alleged incidents of harassment were not sufficiently severe or pervasive to constitute sexual harassment and that the employer had established the above affirmative defense.
If you have questions about employment-related issues, please contact Bettie Sousa,
bsousa@smithdebnamlaw.com, or Connie
Carrigan, ccarrigan@smithdebnamlaw.com of Smith Debnam’s Employment Law Practice Group.
Back
to Index E-DISCOVERY: A NEW WRINKLE IN LITIGATION To say that businesses now rely upon electronic communication and data storage is an understatement - nearly every business communicates or does business electronically. What businesses rarely consider, however, is that such activity creates stored electronic information that may be relevant in the event of a lawsuit. When a suit is filed, the parties can request information from each other through a process called “discovery.” Cases filed in Federal court are now faced with a new wrinkle in the discovery process – that is “e-discovery.”
The Federal Rules of Civil Procedure (the “Rules”) have recently been revised to provide uniformity and guidance to litigants as to how to conduct discovery of electronically stored information (“ESI”). When faced with potential federal litigation, businesses that rely upon ESI must be aware of their increased responsibility to properly preserve and produce such information. They should also be prepared to introduce their information technology (“IT”) staff to their attorney.
The revised Rules now force attorneys to know more about their client’s electronic data systems than ever before. In order to comply with the revised Rules, which became effective on December 1, 2006, attorneys must thoroughly understand their clients’ information systems, document management systems, data storage, and data destruction practices. This understanding becomes immediately necessary once federal litigation has begun, as the revised Rules require the parties to develop a plan for handling the discovery of ESI. The discovery of ESI includes e-mails, web pages, word processing files, computer databases, and virtually anything that is stored on a computer or can only be read though the use of a computer. A brief overview of several of the revised rules follows to illustrate the significance of a shared understanding of the ESI environment between a business and its attorney.
Revised Rule 26(f) provides that as soon as practical all parties must
“discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning . . . (3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced . .
.” When litigation is reasonably anticipated, the revised Rules require the parties to take steps to preserve potentially relevant ESI along with other paper documentation. ESI can be destroyed in seconds unless the client takes affirmative steps – for instance, some ESI may be scheduled for automatic destruction under an established retention policy.
At the beginning of any litigation, therefore, an attorney and client must discuss how the client will preserve documents. Businesses should be prepared to send a “litigation hold” notice to each and every employee who may have knowledge and control over relevant documentation. The litigation hold notice must specifically direct the employees to locate, preserve, and not destroy any relevant documentation, including ESI. The litigation hold notice must also specify that all automatic purging of potentially relevant information must be stopped and documented.
The revised Rules recognize that some potentially discoverable information may have been lost or overwritten as part of a client’s normal deletion of ESI and that businesses should not be penalized for such good faith business practices. Thus, Rule 37 was revised to add subsection (f) providing that:
“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information
system.” This “safe harbor” provision provides some protection for unintentionally destroyed ESI. A reasonable and timely litigation hold notice not only preserves relevant evidence that may assist a client’s case, it may also serve as a defense to an opponent’s accusation that the client has failed to preserve evidence. All businesses must be prepared to distribute litigation hold notices and preserve potentially discoverable information.
Revised Rule 26(a)(1)(B) provides that parties must, without waiting for a request, provide to the other parties
“a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses . .
.” Once again, this amendment requires businesses and their attorneys to confer as soon as possible as to whether they will rely on any ESI in support or defense of their respective claims.
Failure of a business to properly preserve, account for, and educate its attorney as to its ESI can severely impact the outcome of any litigation. Courts have imposed harsh penalties for failure to properly preserve relevant ESI, or to research deeply enough into all electronic archives. The penalties have included sanctions in the form of dismissal, adverse inferences, striking of claims and defenses, and payment of all or a portion of the opposing party’s attorney’s fees.
The above details highlight just a few of the recent revisions to the Federal Rules of Civil Procedure and how they relate to electronically stored information. Although ESI is discoverable in state court suits as well, state courts are expected to soon follow the lead of the federal courts in establishing specific rules to govern the discovery of ESI. Businesses that have planned and invested in an organized and well-managed information and document management system will find themselves better prepared should litigation loom on the horizon. An important aspect of such planning should be to educate your attorney as to your document management systems, data storage, and data destruction. Introducing your IT staff to your attorney may be the best place to start.
Failure to adequately prepare for handling ESI can lead to significant consequences under the revised Rules of federal litigation. We encourage you to contact legal counsel when confronted with potential litigation, particularly when ESI plays a significant role in your business operations.
For additional information or questions on e-discovery contact Attorney Thomas A. Gray at (919) 250-2121 or at
tgray@smithdebnamlaw.com.
Back
to Index
|
