In the most recent installment of Writing that Works, I introduced a fairly new resource for legal writers whose work includes drafting statutes and rules. The book, Plain English for Drafting Statutes and Rules,[1]is a slim volume, but it covers a lot of ground. In that column, I drew from the book to highlight three central principles of effective legislative drafting: (1) use simple declarative sentences; (2) punctuate with care; and (3) tabulate with clarity. In this follow-up column, I’ve chosen to highlight two additional principles.
Use “common and known words.” This principle is apparently one of the very first—and most enduring—legislative drafting principles. According to the authors of Plain English for Drafting Statutes and Rules, one of the most influential statements of this principle came in the late eighteenth century, when English jurist and philosopher and Jeremy Bentham wrote:
https://www.ncbarblog.com/wp-content/uploads/2016/05/Writing-That-Works-May-11.jpg412676NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-01-11 11:01:462017-01-11 11:01:46Help For The Legislative Drafter: Part 2
As 2016 came to a close, there were many things and people for which we could be thankful. Our former Executive Director Allan B. Head is one of those people.
One thing that was probably on most of the NCBA members’ minds as the year ended was the retirement of Mr. Head. He has been one of the Paralegal Division’s biggest supporters. With all of his many duties over the years he somehow found time to check in on our meetings and engage with the paralegals at various events. Mr. Head always wanted us to know that our division was important to the NCBA and he made sure he let each of us know that any chance he got. When interacting with Mr. Head, he had a way of making you feel like you were the most important person at that moment in time; that is a rare quality and a sign of a true gentleman.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-01-11 09:27:342017-01-11 09:27:34A Fond Farewell To Allan Head
On October 4, 2016, the Centers for Medicare & Medicaid Services (“CMS”) issued a final rule reforming participation requirements for Skilled Nursing Facilities (“SNFs”). The rule will be implemented in three phases. Phase 1 requirements should have been implemented by November 28, 2016, Phase 2 requirements must be implemented by November 28, 2017, and Phase 3 requirements must be implemented by November 28, 2019. The final rule marks the first comprehensive update to the requirements for SNFs in 25 years. The rule contains completely new sections in addition to amendments to existing regulations, and we have highlighted selected changes in this article.
Notably, the rule includes a new pre-dispute ban on arbitration agreements between SNFs and their residents (or their representatives). However, this ban was challenged by the American Health Care Association and others in a lawsuit filed on October 17, 2016. As a result, the section of the final rule prohibiting pre-dispute arbitration agreements was stayed and did not take effect on November 28, 2016, as originally planned. As of the date of this writing, the litigation challenging this part of the rule remains ongoing. SNFs must still respond appropriately to the numerous other significant additions and changes contained in the rule that were implemented under the Phase 1 deadline of November 28, 2016.
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Welcome to the first installment of the Juvenile Justice and Children’s Rights Section blog! If you don’t already know, our section is in its 19th year. We’re a very diverse group, in subject matter (we include experts in child welfare, education, juvenile justice, and mental health), in practitioners (including trial and appellate attorneys, paralegals, judges, and individual and policy advocates), in geography (with participation from the many corners in our state) and lastly, diversity in individuals, as we encourage a community with different backgrounds, cultures and experiences.
This is an especially exciting time to be involved with juvenile justice. The Chief Justice’s Commission on the Administration of Law and Justice has recommended that all 16- and 17-year-olds be processed in the juvenile justice system, while providing for an expedited process for transfer to adult court for only the most serious offenders. Additionally, we are celebrating the 50th Anniversary of the U.S. Supreme Court decision, In re Gault. Gault transformed juvenile delinquency court from an informal, unfair process into a consistent and fair setting for youth to face criminal allegations.
We’re hopeful that this blog will bring our broad community even closer together. Please let us know if you have an idea, innovation, or opinion you want to share – we’d love to hear from you!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2017-01-10 12:36:282017-01-10 12:36:28Welcome to the NCBA Juvenile Justice and Children’s Rights Section Blog
Plaintiff Advanced Video Technologies has been around the block a few times already. AVT claimed to be the successor to a patent for a video codec. It had successfully asserted the patent against other defendants but ran into some problems when trying to sue HTC Corp., Blackberry and Motorola Mobility. Its first attempt failed because there was a missing link in the chain of title, meaning AVT didn’t actually own the patent. AVT didn’t appeal but instead had a receiver appointed for the sole purpose of transferring the ownership of the patent. The receiver assigned the patent to AVT and AVT started over again with HTC, Blackberry and Motorola Mobility.
Just a cast of characters first, there are many players to keep straight:
Infochips was the original employer of the inventors but it went out of business before the patent application was filed;
Woo was an inventor who bought the Infochip assets;
Woo assigned the assets to AVC, a predecessor to plaintiff AVT (“C” is before “T” in the alphabet, just keep that in mind when reading).
Epogy was the entity that supposedly owned the patent but didn’t, thus breaking the chain of title the first time around.
It’s actually more complicated than that, but that’s enough for our purposes.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2016-12-19 15:59:172016-12-19 15:59:17Why You Have That Employment Agreement Gobbledygook
The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes. Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment. Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles. This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.
Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception. However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.
Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes. Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited. Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions. Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2016-12-15 09:59:382018-07-21 19:14:46Raise the Age For the N.C. Juvenile Justice System
The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes. Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment. Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles. This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.
Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception. However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.
Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes. Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited. Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions. Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2016-12-15 09:57:312018-08-10 14:10:25Raise the Age For the N.C. Juvenile Justice System
Happy holidays! This time of year gives us time to look back over the past months and forward to what’s ahead. With this in mind, like my counterpart at the N.C. Society of Health Care Attorneys, President Jessica Lewis, I have the unique opportunity to welcome you to the new electronic-only Prognosis format. The hard work of our Newsletter Committee and the editors from the society has led to the successful launch of our new blog format.
At last year’s annual meeting in April, the section welcomed new council members Andrew Walsh, general counsel for Partners Behavioral Health; Scott Templeton of Robinson Lawing; Sarah Crotts of Wall Babcock LLP; Ian Stauffer of Poyner Spruill, and Marc Hewitt of Smith Moore. We welcome back our council members from prior years as well. In addition to myself, our section officers are Jennifer Hutchens of Robinson Bradshaw as our vice chair, Kimberly Kirk of Moore Van Allen as our secretary, and Tina Simpson of Burgeon Legal Group as our treasurer. Our Section Council and Committee members have been active so far this year in planning and I am looking forward to seeing all the great things we can do together this term.
Happy holidays to my fellow members of the NC Society of Health Care Attorneys, and welcome to the new electronic-only Prognosis format. Congratulations to the Editors and the NCBA Health Law Section Newsletter Committee for successfully bringing the new format to fruition. It is certain to improve access to more timely content and thus continue to serve as a valued resource for many members of the Section and Society.
The Society wrapped up its 2015-16 year with an engaging Annual Meeting and CLE, full of both timely topics delivered by field experts and excellent networking opportunities afforded by the exceptional membership, sponsors, presenters, and attendees. The Society welcomed to the Board Hilary Bowman as a Director, Robb Leandro as Secretary-Treasurer, and Elizabeth Runyon as President-Elect. The Education Committee, now chaired by Elizabeth, has already begun to plan next year’s annual program, which will again be hosted at the ever popular Rizzo Center in Chapel Hill on October 6, 2017. Please mark your calendars now!
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It’s hard, sometimes, to give back to the community. Doubts creep into your mind (and your wallet). “Did he really get those items?” “Is she appreciative?” “Where is the money going?” I walked that tightrope a time or two when I donated clothes, penned a check or provided in-kind support. Yet, I continue to walk that tightrope because giving back is the right thing to do.
The right thing to do can be demonstrated in a legal setting. When I worked as a paralegal in a public defender’s office, I designed an internship for undergrads (Social work majors, English majors, math majors) not on the pre-law track, but interested in criminal law. The senior administration, attorneys and professors at the local colleges viewed the concept as a win-win. It helped that one of the professors was a former Family Court judge. Paralegals and admin staff pitched in to train the interns to succeed in and out of the courtrooms.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2016-12-14 12:13:252016-12-14 12:13:25Give Back Because It Is the Right Thing To Do
Help For The Legislative Drafter: Part 2
Featured Posts, UncategorizedThis column originally appeared in the November 2016 edition of North Carolina Lawyer.
In the most recent installment of Writing that Works, I introduced a fairly new resource for legal writers whose work includes drafting statutes and rules. The book, Plain English for Drafting Statutes and Rules,[1] is a slim volume, but it covers a lot of ground. In that column, I drew from the book to highlight three central principles of effective legislative drafting: (1) use simple declarative sentences; (2) punctuate with care; and (3) tabulate with clarity. In this follow-up column, I’ve chosen to highlight two additional principles.
Use “common and known words.” This principle is apparently one of the very first—and most enduring—legislative drafting principles. According to the authors of Plain English for Drafting Statutes and Rules, one of the most influential statements of this principle came in the late eighteenth century, when English jurist and philosopher and Jeremy Bentham wrote:
Read more
A Fond Farewell To Allan Head
Paralegal DivisionBy Annette Phelps
One thing that was probably on most of the NCBA members’ minds as the year ended was the retirement of Mr. Head. He has been one of the Paralegal Division’s biggest supporters. With all of his many duties over the years he somehow found time to check in on our meetings and engage with the paralegals at various events. Mr. Head always wanted us to know that our division was important to the NCBA and he made sure he let each of us know that any chance he got. When interacting with Mr. Head, he had a way of making you feel like you were the most important person at that moment in time; that is a rare quality and a sign of a true gentleman.
Read more
Medicare and Medicaid Programs; Reform of Requirements For Long-Term Care Facilities
Health Law SectionBy Terri Harris, Susan Fradenburg and Katye Jobe
On October 4, 2016, the Centers for Medicare & Medicaid Services (“CMS”) issued a final rule reforming participation requirements for Skilled Nursing Facilities (“SNFs”). The rule will be implemented in three phases. Phase 1 requirements should have been implemented by November 28, 2016, Phase 2 requirements must be implemented by November 28, 2017, and Phase 3 requirements must be implemented by November 28, 2019. The final rule marks the first comprehensive update to the requirements for SNFs in 25 years. The rule contains completely new sections in addition to amendments to existing regulations, and we have highlighted selected changes in this article.
Notably, the rule includes a new pre-dispute ban on arbitration agreements between SNFs and their residents (or their representatives). However, this ban was challenged by the American Health Care Association and others in a lawsuit filed on October 17, 2016. As a result, the section of the final rule prohibiting pre-dispute arbitration agreements was stayed and did not take effect on November 28, 2016, as originally planned. As of the date of this writing, the litigation challenging this part of the rule remains ongoing. SNFs must still respond appropriately to the numerous other significant additions and changes contained in the rule that were implemented under the Phase 1 deadline of November 28, 2016.
Read more
Welcome to the NCBA Juvenile Justice and Children’s Rights Section Blog
Juvenile Justice & Children's RightsBy Eric Zogry
This is an especially exciting time to be involved with juvenile justice. The Chief Justice’s Commission on the Administration of Law and Justice has recommended that all 16- and 17-year-olds be processed in the juvenile justice system, while providing for an expedited process for transfer to adult court for only the most serious offenders. Additionally, we are celebrating the 50th Anniversary of the U.S. Supreme Court decision, In re Gault. Gault transformed juvenile delinquency court from an informal, unfair process into a consistent and fair setting for youth to face criminal allegations.
We’re hopeful that this blog will bring our broad community even closer together. Please let us know if you have an idea, innovation, or opinion you want to share – we’d love to hear from you!
Why You Have That Employment Agreement Gobbledygook
Intellectual Property Law SectionPlaintiff Advanced Video Technologies has been around the block a few times already. AVT claimed to be the successor to a patent for a video codec. It had successfully asserted the patent against other defendants but ran into some problems when trying to sue HTC Corp., Blackberry and Motorola Mobility. Its first attempt failed because there was a missing link in the chain of title, meaning AVT didn’t actually own the patent. AVT didn’t appeal but instead had a receiver appointed for the sole purpose of transferring the ownership of the patent. The receiver assigned the patent to AVT and AVT started over again with HTC, Blackberry and Motorola Mobility.
Just a cast of characters first, there are many players to keep straight:
It’s actually more complicated than that, but that’s enough for our purposes.
Read more
Raise the Age For the N.C. Juvenile Justice System
Featured PostsBy Eric Zogry and Marcus Thompson
Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception. However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.
Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes. Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited. Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions. Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.
Read more
Raise the Age For the N.C. Juvenile Justice System
Featured PostsThe N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes. Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment. Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles. This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.
Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception. However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.
Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes. Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited. Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions. Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.
Read more
Health Law Section Chair’s Report
Health Law SectionHappy holidays! This time of year gives us time to look back over the past months and forward to what’s ahead. With this in mind, like my counterpart at the N.C. Society of Health Care Attorneys, President Jessica Lewis, I have the unique opportunity to welcome you to the new electronic-only Prognosis format. The hard work of our Newsletter Committee and the editors from the society has led to the successful launch of our new blog format.
At last year’s annual meeting in April, the section welcomed new council members Andrew Walsh, general counsel for Partners Behavioral Health; Scott Templeton of Robinson Lawing; Sarah Crotts of Wall Babcock LLP; Ian Stauffer of Poyner Spruill, and Marc Hewitt of Smith Moore. We welcome back our council members from prior years as well. In addition to myself, our section officers are Jennifer Hutchens of Robinson Bradshaw as our vice chair, Kimberly Kirk of Moore Van Allen as our secretary, and Tina Simpson of Burgeon Legal Group as our treasurer. Our Section Council and Committee members have been active so far this year in planning and I am looking forward to seeing all the great things we can do together this term.
Read more
N.C. Society of Health Care Attorneys President’s Report
Health Law SectionBy Jessica M. Lewis
Happy holidays to my fellow members of the NC Society of Health Care Attorneys, and welcome to the new electronic-only Prognosis format. Congratulations to the Editors and the NCBA Health Law Section Newsletter Committee for successfully bringing the new format to fruition. It is certain to improve access to more timely content and thus continue to serve as a valued resource for many members of the Section and Society.
The Society wrapped up its 2015-16 year with an engaging Annual Meeting and CLE, full of both timely topics delivered by field experts and excellent networking opportunities afforded by the exceptional membership, sponsors, presenters, and attendees. The Society welcomed to the Board Hilary Bowman as a Director, Robb Leandro as Secretary-Treasurer, and Elizabeth Runyon as President-Elect. The Education Committee, now chaired by Elizabeth, has already begun to plan next year’s annual program, which will again be hosted at the ever popular Rizzo Center in Chapel Hill on October 6, 2017. Please mark your calendars now!
Read more
Give Back Because It Is the Right Thing To Do
Paralegal DivisionIt’s hard, sometimes, to give back to the community. Doubts creep into your mind (and your wallet). “Did he really get those items?” “Is she appreciative?” “Where is the money going?” I walked that tightrope a time or two when I donated clothes, penned a check or provided in-kind support. Yet, I continue to walk that tightrope because giving back is the right thing to do.
The right thing to do can be demonstrated in a legal setting. When I worked as a paralegal in a public defender’s office, I designed an internship for undergrads (Social work majors, English majors, math majors) not on the pre-law track, but interested in criminal law. The senior administration, attorneys and professors at the local colleges viewed the concept as a win-win. It helped that one of the professors was a former Family Court judge. Paralegals and admin staff pitched in to train the interns to succeed in and out of the courtrooms.
Read more