Friday, December 21, 2007

"Would You Like to Supersize Your Contract?"

"You must have a form for that?" Business attorneys often hear that question from prospective clients when discussing a document they would like to have prepared. It may be an agreement relative to formation of an entity, a commercial contract, or an agreement for the purchase and sale of a business. Too often parties believe the lawyer has a "boilerplate" agreement into which the lawyer simply needs to fill-in the names of the parties and the dates.

Part of the value of hiring a seasoned business attorney is, indeed, to benefit from the prior experiences and work performed by the attorney in similar matters. Additionally, there is the benefit of efficiency and economy with an attorney who does not have to "re-invent the wheel" when working on a business agreement. Each commercial relationship, however, has its own dynamic and unique concerns which should be properly and specifically addressed in the governing contract. The provisions of the contract to address such issues cannot be "cut and pasted" from one agreement to another.

Your business attorney should take the time to ask you about the parties involved, the specific goals of the business relationship or transaction, standards and guidelines for performance by each party, timing concerns, and any unique issues that may arise in performance of the contract. These are matters that are unique to each contract. If these questions are not asked and, therefore, not addressed in the agreement, in the event a dispute should arise the agreement will provide little guidance in resolving the dispute.

A little extra time in the preparation and drafting of a business contract may save much time and many dollars in avoiding or resolving a subsequent dispute between the parties. There are no contract "Value Meals" to order.

Tuesday, December 18, 2007

What is Meritas?

Recently I attended a conference hosted by Meritas, a global alliance of law firms of which Wiggin & Nourie, P.A. is a member. As a new associate at Wiggin & Nourie, P.A., I was largely unfamiliar with this relationship and the ways in which the firm’s membership benefits our clients. I learned that this alliance enables W&N to offer our clients regional expertise anywhere in the world while maintaining the personal attention, superior responsiveness and cost-effectiveness that mid-sized firms are able to provide.

Membership in Meritas is like having a Wiggin & Nourie, P.A. branch office in every major market in the world; only better. Member firms are not just satellite offices of a firm whose main practice is located elsewhere. Only mid-sized firms with an established reputation in their local market are invited to join Meritas. Once member firms have been carefully selected, Meritas continues to monitor the quality of their legal services and requires regular recertification. Best of all, since it’s an alliance of mid-sized firms, Wiggin & Nourie, P.A. is able to maintain a cost-effectiveness that very large law firms just can’t match.

What this all means to our clients is that Meritas helps us to serve all their legal needs – whether they are here in New Hampshire or, through the regional expertise of other Meritas firms, virtually anywhere in the world.
For more information, see

Thursday, November 29, 2007

What Employers Can Learn from the Boston Red Sox

Much has been written about the steps the Red Sox have taken to make the team successful. A few of the decisions could be implemented by employers with something less than a $143 million payroll.

The Red Sox identified minor league players the team expected to move up during the season and provided them with an orientation program to address everything from media relations to tipping of club house attendants. The same could be applied outside the baseball world by identifying employees with potential and then providing them with early tools to help them in the next level of their careers.

Curt Schilling could earn $2 million in bonuses if he meets certain weight goals. Although this is an extreme measure, many employers are seeing the benefits of employee wellness programs. Employer programs on weight loss, smoking cessation, and similar health topics can encourage a healthier workforce with the potential for fewer sick days and lower insurance costs (and a quicker fast ball).

The Red Sox have seen the value in their “older” players such as Tim Wakefield and Schilling and have entertained new ways to play to their strengths (such as a six-man rotation). With baby boomers approaching retirement age, critical skills will be leaving the workforce. Forward-thinking employers are looking for creative ways to retain older employees and/or train younger workers to be ready to fill the shoes of retiring workers.

Enjoy the off-season and remember . . . spring training games will begin in less than three months.

Monday, November 26, 2007

New Hampshire Civil Union

Attorney Polly Hall, a domestic attorney with our firm and I have been presenting talks around the State on the new Civil Union statute. Recently we did a presentation at a local university to discuss the statute that will go into effect January 1, 2008. It was well attended, and I think the people of New Hampshire are starting to really think about the new law and its impact on our state.

While the new law will give rights to civil union partners, it also comes with its drawbacks. Of note is the university's benefit program. I have been told that the university is thinking of treating same sex partners as they treat heterosexual partners. This means if a same sex couple is in a "domestic partnership," meaning they have not entered into a civil union, they will not be afforded the benefits of a couple joined in a legal union. Only same sex couples who enter into a civil union will be afforded benefits available to heterosexual married couples. As Attorney Hall and I discussed the new law, the audience began to understand the broad impact of the statute and I get the sense in the community that a lot of people will be watching to see how the new law impacts our State.

Wednesday, November 21, 2007

“Every Breath You Take . . . I’ll Be Watching You”

I recently attended a session on privacy in the workplace at the American Bar Association Labor and Employment Conference. Up until now, much of the talk has focused on email, and the trend in the courts has been to find that employees do not have a reasonable expectation of privacy in the use of workplace computers if the employer has distributed a policy reaffirming its right to inspect its own equipment.

Besides email, there are many other forms of technology that allow employers to watch what their employees are doing. One panelist showed us a radio-frequency identification (RFID) device that a hospital requires its employees to wear in order to track where they are while they are working in an effort to improve patient care. For example, if a patient complains that she has not seen a nurse for 24 hours, hospital administration can track the room history to see if anyone did visit the room during that period of time. Other employers have started using GPS devices to track the location of employees.

This scene easily could be set to the tune of The Police’s stalker song, “Every breath you take, every move you make . . . I’ll be watching you.” Although these devices have the potential to improve efficiency and the delivery of services, they also run the risk of invading employee privacy and deflating employee morale. Prior to implementing a surveillance or searching program, employers should:

1) articulate a legitimate business reason for the surveillance program,
2) use the most narrow surveillance program possible to meet the business need,
3) avoid systems that track employees when they are not working,
4) distribute a policy explaining the type of searching or surveillance utilized, and
5) consult with an attorney for advice specific to the particular program.

Thursday, November 1, 2007

Supreme Court on the Road

On October 25, 2007, the Supreme Court traveled to Bow High School to provide 600 high school students from a number of community schools the opportunity to hear two oral arguments. After the arguments the students were given an opportunity to question both the attorneys and the members of the Court. In advance of the argument, the Court asked local attorneys to visit the participating schools. I had the opportunity to attend the Bedford High School law class taught by Principal George Edwards in advance of the October 25th oral argument. The students were provided with a condensed version of New Hampshire Public Television, New Hampshire Outlook Program on the New Hampshire Supreme Court. They were also provided with the two Superior Court Orders on appeal and condensed versions of the two Briefs in each case.

The first case argued involved the jury’s decision to convict despite inconsistent testimony from the victim concerning the defendant’s identification. State of New Hampshire v. Sean Brown, 2006-0333. The trial court vacated the jury’s verdict based upon the unreliability of the evidence confirming the defendant’s identification. This appeal prompted a number of questions from the students over how disputed facts are handled in the courtroom and the role of the jury as opposed to the trial judge. This questioning also led to a discussion concerning the role of the trial court as opposed to the appellate court, whose role is limited to the review of legal errors and unsustainable exercises of discretion.

The second case involved an appeal concerning the trial court’s decision to consolidate several separate drug sales as part of a common scheme despite the defendant’s request to sever because of the prejudicial impact of cumulative bad acts. State of New Hampshire v. Michael Spinale, 2006-0872. This appeal generated questions from the students concerning the rules that govern the introduction of evidence at trial and in particular, why the Rules of Evidence prohibit introduction of evidence from unrelated prior acts given the potential prejudice that the jury might convict a defendant based upon prior bad conduct, which could be unrelated to the charge at issue.

The students also asked a number of questions about the accuracy of television law shows, such as Law & Order and they asked practical questions about how one goes about getting a case to the Supreme Court and how one prepares both the written Brief and how ones prepares for oral argument. The Supreme Court will issue its decisions affirming and or reversing these cases in approximately 3 months. The written decisions will appear as slip opinions on the Court’s web site at:

Monday, October 22, 2007

Conservation Easement Tax Incentives Expire Soon

The Pension Protection Act of 2006 added temporary tax incentives for the donation of conservation easements. Ordinarily, the income tax charitable deduction allowable for the donation of a conservation easement is limited to 30% of the donor's contribution base (a modified adjusted gross income figure), and the excess value of the donation may be carried forward for only five years. The Pension Protection Act increased the percentage limitation for most taxpayers to 50%, and the carry forward limit to 15 years. However, these new incentives for conservation easement donations apply only to donations of conservation easements made between January 1, 2006 and December 31, 2007.

Because the donation of a conservation easement requires a survey, a specialized appraisal, and negotiation with the donee conservation organization, all of which can take several months, donors need to act now if they hope to take advantage of the tax incentives offered by the Pension Protection Act. Proposed legislation has been introduced to extend the incentives, but that legislation is likely to languish because tax incentives for conservation easements are somewhat controversial. Past abuses in the valuation of conservation easements have caught the attention of the IRS and Congress, which has lead to wrangling over the content of further legislation.

Friday, October 19, 2007

The Portsmouth Shipyard

On October 9, I had the opportunity to present an estate planning seminar at the Portsmouth Naval Shipyard. I have been doing these presentations for many years and have watched as the shipyard has struggled through some hard times. This week, the atmosphere at the shipyard seemed more positive than ever. When I did a seminar a couple of years ago right after the vote to save the yard, there was excitement, but now there seems to be a quiet confidence. People do not seem concerned about losing their jobs, and I expect that is a feeling that they have not had in the past. It was a pleasure to see the energy of this place that plays such an important role in seacoast life.

Monday, October 15, 2007

New Hampshire Health Insurance Coverage for a Former Spouse

New Hampshire's law regarding health insurance coverage for a former spouse will change on January 1, 2008. After January 1, 2008, a former spouse will be able to continue his/her coverage under the employer sponsored group health insurance plan of the participating spouse. This means that a former spouse will receive the same benefits and coverage as he/she did during the marriage under the plan without triggering rights under COBRA. The former spouse can elect to continue coverage until the earliest of the following events occurs:

1. the 3 anniversary of the final decree of divorce or legal separation;
2. the remarriage of the former spouse;
3. the remarriage of the member spouse ;
4. the death of the member spouse; or
5. such earlier time as stated by the final decree of divorce or legal separation.

Upon the occurrence of one of the events above, the former spouse will then be able to elect continued coverage under COBRA, which will likely trigger a higher insurance premium to continue the coverage. The new law does not apply to employer's self-insured plans. As a former spouse, you will want to be prepared for this financial issue when it happens.

A former spouse will have 30 days from the divorce decree to elect continued coverage and this election must be in writing. Depending upon the health insurance plan, the former spouse may be responsible for the payment of a premium if coverage is elected. Also, the new law allows the health insurance provider to charge an administrative fee up to 2 % of the monthly premium cost. The divorce decree should state which party will pay these potential costs to avoid having to return to Court after the divorce to address this issue.

If you are in the midst of a divorce, you should seek legal counsel regarding your specific rights and responsbilities under New Hamphisire's new law for health insurance coverage.

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Welcome to the Wiggin & Nourie, PA blog. The purpose of this blog is to share changes in New Hampshire law, supply artices of interest and keep our readers up to date with happenings throughout New Hampshire and all over New England. Please come back often.